Exhibit 4.7
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REGISTRATION RIGHTS AGREEMENT
Dated August 26, 1997
among
FIRST KEYSTONE FINANCIAL, INC.
FIRST KEYSTONE CAPITAL TRUST I
and
SANDLER ▇'▇▇▇▇▇ & PARTNERS, L.P.
as Initial Purchaser
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of August 26, 1997 among First Keystone Financial, Inc., a
Pennsylvania corporation (the "Corporation"), First Keystone Capital Trust
I, a business trust created under the laws of the state of Delaware (the
"Trust"), and Sandler ▇'▇▇▇▇▇ & Partners, L.P. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated
August 21, 1997 (the "Purchase Agreement"), among the Corporation, as
issuer of the Series A 9.70% Junior Subordinated Deferrable Interest
Debentures due August 15, 2027 (the "Subordinated Debentures"), the Trust
and the Initial Purchaser, which provides for, among other things, the sale
by the Trust to the Initial Purchaser of 16,200 of the Trust's Series A
9.70% Capital Securities, liquidation amount $1,000 per Capital Security
(the "Capital Securities"), the proceeds of which will be used by the Trust
to purchase Subordinated Debentures. The Capital Securities, together with
the Subordinated Debentures and the Corporation's guarantee of the Capital
Securities (the "Capital Securities Guarantee"), are collectively referred
to as the "Securities". In order to induce the Initial Purchaser to enter
into the Purchase Agreement, the Corporation and the Trust have agreed to
provide to the Initial Purchaser and their direct and indirect transferees
the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Additional Distributions" shall have the meaning set forth in Section
2(e) hereof.
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(t)
hereof.
"Business Day" means any day other than a Saturday, a Sunday, or a day
on which banking institutions in New York, New York or Media, Pennsylvania
are authorized or required by law or executive order to close.
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"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Corporation" shall have the meaning set forth in the preamble to this
Agreement and also includes the Corporation's successors and permitted
assigns.
"Declaration" or "Declaration of Trust" shall mean the Amended and
Restated Declaration of Trust of First Keystone Capital Trust I, dated as
of August 26, 1997, by the trustees named therein, the Corporation as
sponsor, and the holders from time to time of undivided beneficial
interests in the assets of the Trust.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Trust; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Offer" shall mean the offer by the Corporation and the Trust
to the Holders to exchange all of the Registrable Securities (other than
Private Exchange Securities) for a like principal amount of Exchange
Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Securities" shall mean (i) with respect to the Subordinated
Debentures, the Series B 9.70% Junior Subordinated Deferrable Interest
Debentures due August 15, 2027 (the "Exchange Debentures") containing terms
substantially identical to the Subordinated Debentures (except that they
will not contain terms with respect to the transfer restrictions under the
Securities Act (other than requiring minimum transfers thereof to be in
blocks of $100,000 aggregate principal amount), and will not provide for
any Liquidated Damages thereon), (ii) with respect to the Capital
Securities, the Trust's Series B 9.70% Capital Securities, liquidation
amount $1,000 per Capital Security (the "Exchange Capital Securities")
which will have terms substantially identical to the Capital Securities
(except they will not contain terms with respect to transfer restrictions
under the Securities
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Act (other than requiring minimum transfers thereof to be in blocks of
$100,000 aggregate liquidation amount), and will not provide for any
increase in Additional Distributions thereon) and (iii) with respect to the
Capital Securities Guarantee, the Corporation's guarantee (the "Exchange
Capital Securities Guarantee") of the Exchange Capital Securities which
will have terms substantially identical to the Capital Securities
Guarantee.
"Holder" shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture or Declaration of Trust.
"Indenture" shall mean the Indenture relating to the Subordinated
Debentures and the Exchange Debentures dated as of August 26, 1997 between
the Corporation, as issuer, and The Bank of New York, as trustee, as the
same may be amended from time to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble
to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Issue Date" shall mean August 26, 1997, the date of original issuance
of the Securities.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a)
hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-
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effective amendments, and in each case including all material incorporated
by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean the Securities and, if issued, the
Private Exchange Securities; provided, however, that Securities or Private
Exchange Securities, as the case may be, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such
Securities or Private Exchange Securities for the exchange or resale
thereof, as the case may be, shall have been declared effective under the
Securities Act and such Securities or Private Exchange Securities, as the
case may be, shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities or Private Exchange Securities, as the case
may be, shall have been sold to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) under the Securities
Act or are eligible to be sold without restriction as contemplated by Rule
144(k), (iii) such Securities or Private Exchange Securities, as the case
may be, shall have ceased to be outstanding or (iv) with respect to the
Securities, such Securities shall have been exchanged for Exchange
Securities upon consummation of the Exchange Offer and are thereafter
freely tradeable by the holder thereof (other than an Affiliate of the
Corporation).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Corporation with this Agreement,
including without limitation: (i) all SEC or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees,
including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained
by any Holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one counsel for all underwriters or
Holders as a group in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities) and compliance with the
rules of the NASD, (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) the fees and disbursements of
counsel for the Corporation and of the independent certified public
accountants of the Corporation, including the expenses of any "cold
comfort" letters required by or incident to such performance and
compliance, (vi) the fees and expenses of the Trustee and its counsel and
any exchange agent or custodian, (vii) all fees and expenses incurred in
connection with the listing, if any, of any of the Exchange Securities or
the Registrable Securities on any
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securities exchange or exchanges, and (viii) the reasonable fees and
expenses of any special experts retained by the Corporation in connection
with any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Corporation and the Trust which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, and
all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such
shorter period as may hereafter be referred to in Rule 144(k) under the
Securities Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Corporation and the Trust pursuant to the provisions of
Section 2(b) hereof which covers all of the Registrable Securities or all
of the Private Exchange Securities, as the case may be, on an appropriate
form under Rule 415 under the Securities Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustees" shall mean any and all trustees with respect to (i) the
Capital Securities under the Declaration, (ii) the Subordinated Debentures
under the Indenture and (iii) the Capital Securities Guarantee.
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2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below,
the Corporation and the Trust shall, for the benefit of the Holders, use
their reasonable best efforts to (i) cause to be filed with the SEC within
150 days after the Issue Date an Exchange Offer Registration Statement on
an appropriate form under the Securities Act relating to the Exchange
Offer, (ii) cause such Exchange Offer Registration Statement to be declared
effective under the Securities Act by the SEC not later than the date which
is 180 days after the Issue Date, and (iii) keep such Exchange Offer
Registration Statement effective for not less than 30 calendar days (or
longer if required by applicable law) after the date notice of the Exchange
Offer is mailed to the Holders. Upon the effectiveness of the Exchange
Offer Registration Statement, the Corporation and the Trust shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer
to enable each Holder eligible and electing to exchange Registrable
Securities for a like principal amount of Exchange Debentures or a like
liquidation amount of Exchange Capital Securities, together with the
Exchange Guarantee, as applicable (assuming that such Holder (i) is not an
Affiliate of the Trust or the Corporation, (ii) is not a broker-dealer
tendering Registrable Securities acquired directly from the Corporation for
its own account, (iii) acquires the Exchange Securities in the ordinary
course of such Holder's business and (iv) has no arrangements or
understandings with any Person to participate in the Exchange Offer for the
purpose of distributing the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue
sky laws (other than requiring minimum transfers in blocks having an
aggregate principal or liquidation amount, as the case may be, of
$100,000).
In connection with the Exchange Offer, the Corporation and the
Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not
less than 30 days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law) (such period referred to herein
as the "Exchange Period");
(iii) utilize the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last Business Day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Securities delivered for exchange, and
a statement that such Holder is withdrawing his election to have such
Securities exchanged;
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(v) notify each Holder that any Security not tendered by such Holder
in the Exchange Offer will remain outstanding and continue to accrue
interest or accumulate distributions, as the case may be, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
If the Initial Purchaser determines upon advice of its outside
counsel that it is not eligible to participate in the Exchange Offer with
respect to the exchange of Securities constituting any portion of an unsold
allotment in the initial distribution, as soon as practicable upon receipt
by the Corporation and the Trust of a written request from such Initial
Purchaser, the Corporation and the Trust, as applicable, shall issue and
deliver to such Initial Purchaser in exchange (the "Private Exchange") for
the Securities held by such Initial Purchaser, a like liquidation amount of
Capital Securities of the Trust or, in the event the Trust is liquidated
and Subordinated Debentures are distributed, a like principal amount of the
Subordinated Debentures of the Corporation, together with the Exchange
Guarantee, in each case that are identical (except that such securities may
bear a customary legend with respect to restrictions on transfer pursuant
to the Securities Act) to the Exchange Securities (the "Private Exchange
Securities") and which are issued pursuant to the Indenture, the
Declaration or the Guarantee (which provides that the Exchange Securities
will not be subject to the transfer restrictions set forth in the Indenture
or the Declaration, as applicable (other than requiring minimum transfers
in blocks having an aggregate principal or liquidation amount, as the case
may be, of $100,000), and that the Exchange Securities, the Private
Exchange Securities and the Securities will vote and consent together on
all matters as one class and that neither the Exchange Securities, the
Private Exchange Securities nor the Securities will have the right to vote
or consent as a separate class on any matter). The Private Exchange
Securities shall be of the same series as the Exchange Securities and the
Corporation and the Trust will seek to cause the CUSIP Service Bureau to
issue the same CUSIP Numbers for the Private Exchange Securities as for the
Exchange Securities issued pursuant to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer and,
if applicable, the Private Exchange, the Corporation and the Trust, as the
case requires, shall:
(i) accept for exchange all Securities or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(ii) deliver, or cause to be delivered, to the applicable Trustee for
cancellation all Securities or portions thereof so accepted for exchange by
the Corporation; and
(iii) issue, and cause the applicable Trustee under the Indenture,
the Declaration or the Guarantee, as applicable, to promptly authenticate
and deliver to each Holder, new
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Exchange Securities or Private Exchange Securities, as applicable, equal in
principal amount to the principal amount of the Subordinated Debentures or
equal in liquidation amount to the liquidation amount of the Capital
Securities (together with the guarantee thereof) as are surrendered by such
Holder.
Distributions on each Exchange Capital Security and interest on
each Exchange Debenture and Private Exchange Security issued pursuant to
the Exchange Offer and in the Private Exchange will accrue from the last
date on which a Distribution or interest was paid on the Capital Security
or the Subordinated Debenture surrendered in exchange therefor or, if no
Distribution or interest has been paid on such Capital Security or
Subordinated Debenture, from the Issue Date. To the extent not prohibited
by any law or applicable interpretation of the staff of the SEC, the
Corporation and the Trust shall use their reasonable best efforts to
complete the Exchange Offer as provided above, and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange Offer
shall not be subject to any conditions, other than that the Exchange Offer
does not violate applicable law or any applicable interpretation of the
staff of the SEC. Each Holder of Registrable Securities who wishes to
exchange such Registrable Securities for Exchange Securities in the
Exchange Offer will be required to make certain customary representations
in connection therewith, including, in the case of any Holder of Capital
Securities, representations that (i) it is not an Affiliate of the Trust or
the Corporation, (ii) the Exchange Securities to be received by it were
acquired in the ordinary course of its business and (iii) at the time of
the Exchange Offer, it has no arrangement with any person to participate in
the distribution (within the meaning of the Securities Act) of the Exchange
Capital Securities. The Corporation and the Trust shall inform the Initial
Purchaser, after consultation with the applicable Trustees, of the names
and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchaser shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Securities in the Exchange
Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Securities that are
Private Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Corporation and the Trust shall have no further
obligation to register the Registrable Securities (other than Private
Exchange Securities) held by any Holder pursuant to Section 2(b) of this
Agreement.
(b) Shelf Registration. In the event that (i) the Corporation,
the Trust or the Majority Holders reasonably determine, after conferring
with counsel (which may be in-house counsel), that the Exchange Offer
Registration provided in Section 2(a) above is not available under
applicable law and regulations and currently prevailing interpretations of
the staff of the SEC, (ii) the Corporation shall determine in good faith
that there is a reasonable likelihood that, or a material uncertainty
exists as to whether, consummation of the Exchange Offer would result in
(x) the Trust becoming subject to federal income tax with respect to income
received or accrued on the Subordinated Debentures or the
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Exchange Debentures (collectively, the "Debentures"), (y) interest payable
by the Corporation on the Debentures not being deductible by the
Corporation for United States federal income tax purposes or (z) the Trust
becoming subject to more than a de minimus amount of other taxes, duties or
governmental charges, (iii) the Exchange Offer Registration Statement is
not declared effective within 180 days of the Issue Date or (iv) upon the
request of the Initial Purchaser with respect to any Registrable Securities
held by it, if such Initial Purchaser is not permitted, in the opinion of
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, pursuant to applicable law or applicable
interpretations of the staff of the SEC, to participate in the Exchange
Offer and thereby receive securities that are freely tradeable without
restriction under the Securities Act and applicable blue sky or state
securities laws (any of the events specified in (i)-(iv) being a "Shelf
Registration Event" and the date of occurrence thereof, the "Shelf
Registration Event Date"), then in addition to or in lieu of conducting the
Exchange Offer contemplated by Section 2(a), as the case may be, the
Corporation and the Trust shall use their reasonable best efforts to cause
to be filed as promptly as practicable after such Shelf Registration Event
Date, as the case may be, and, in any event, within 45 days after such
Shelf Registration Event Date (which shall be no earlier than 75 days after
the Closing Time), a Shelf Registration Statement providing for the sale by
the Holders of all of the Registrable Securities (except in the case of
clause (iv) above in which case the Shelf Registration Statement need cover
only the Registrable Securities held by the Initial Purchaser), and shall
use its reasonable best efforts to have such Shelf Registration Statement
declared effective by the SEC as soon as practicable. No Holder of
Registrable Securities shall be entitled to include any of its Registrable
Securities in any Shelf Registration pursuant to this Agreement unless and
until such Holder furnishes to the Corporation and the Trust in writing,
within 15 days after receipt of a request therefor, such information as the
Corporation and the Trust may, after conferring with counsel with regard to
information relating to Holders that would be required by the SEC to be
included in such Shelf Registration Statement or Prospectus included
therein, reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein. Each Holder as to which any
Shelf Registration is being effected agrees to furnish to the Corporation
and the Trust all information with respect to such Holder necessary to make
the information previously furnished to the Corporation by such Holder not
materially misleading.
The Corporation and the Trust agree to use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective and
usable for resales for (a) the Rule 144(k) Period in the case of a Shelf
Registration Statement filed pursuant to Section 2(b)(i), (ii) or (iii) or
(b) 180 days in the case of a Shelf Registration Statement filed pursuant
to Section 2(b)(iv) (subject in each case to extension pursuant to the last
paragraph of Section 3 hereof), or for such shorter period which will
terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or cease to be outstanding (the "Effectiveness Period"). The
Corporation and the Trust shall not permit any securities other than
Registrable Securities to be included in the Shelf Registration. The
Corporation and the Trust will, in the event a Shelf Registration Statement
is declared effective, provide to each Holder a reasonable number of copies
of the Prospectus which is a part of the Shelf Registration Statement and
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notify each such Holder when the Shelf Registration has become effective.
The Corporation and the Trust further agree, if necessary, to supplement or
amend the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by the
Corporation for such Shelf Registration Statement or by the Securities Act
or by any other rules and regulations thereunder for shelf registrations,
and the Corporation and the Trust agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(c) Expenses. The Corporation, as issuer of the Subordinated
Debentures, shall pay all Registration Expenses in connection with any
Registration Statement filed pursuant to Section 2(a) and/or 2(b) hereof
and will reimburse the Initial Purchaser for the reasonable fees and
disbursements of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial
Purchaser, incurred in connection with the Exchange Offer and, if
applicable, the Private Exchange, or any one other counsel designated in
writing by the Majority Holders to act as counsel for the Holders of the
Registrable Securities in connection with a Shelf Registration Statement,
which other counsel shall be reasonably satisfactory to the Corporation.
Except as provided herein, each Holder shall pay all expenses of its
counsel and any of its other advisors or experts, underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed
to have become effective unless it has been declared effective by the SEC;
provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to such Exchange Offer
Registration Statement or Shelf Registration Statement is interfered with
by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Registration Statement will be
deemed not to have been effective during the period of such interference,
until the offering of Registrable Securities pursuant to such Registration
Statement may legally resume. The Corporation and the Trust will be deemed
not to have used their reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite period if
either of them voluntarily takes any action that would result in any such
Registration Statement not being declared effective or that would result in
the Holders of Registrable Securities covered thereby not being able to
exchange or offer and sell such Registrable Securities during that period
unless such action is required by applicable law.
(e) Liquidated Damages. In the event that:
(i) neither the Exchange Offer Registration Statement is
filed with the SEC on or prior to the 150th day after the Issue Date nor a
Shelf Registration Statement
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is filed with the SEC on or prior to the 45th day after the Shelf
Registration Event Date in respect of a Shelf Registration Event
attributable to any of the events set forth in Sections 2(b)(i), (ii) and
(iii) (provided that in no event shall such date be earlier than 75 days
after the Issue Date), then, commencing on the day after the applicable
required filing date, liquidated damages ("Liquidated Damages") shall
accrue on the principal amount of the Subordinated Debentures, and
additional distributions ("Additional Distributions") shall accumulate on
the liquidation amount of the Trust Securities (as such term is defined in
the Declaration), each at a rate of .25% per annum; or
(ii) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is declared effective by the SEC on or prior
to the 180th day after the Issue Date (in the case of an Exchange Offer
Registration Statement) or on or prior to the later of (A) the 30th day
after the date such Shelf Registration Statement was required to be filed
and (B) the 180th day after the Issue Date (in the case of a Shelf
Registration Statement, in respect of a Shelf Registration Event
attributable to any of the events set forth in Sections 2(b)(i), (ii) and
(iii)), then, commencing on the 181st day after the Issue Date (in the case
of an Exchange Offer Registration Statement) or the later of (A) the 31st
day after the day such Shelf Registration Statement was required to be
filed and (B) the 181st day after the Issue Date (in the case of a Shelf
Registration Statement, in respect of a Shelf Registration Event
attributable to any of the events set forth in Sections 2(b)(i), (ii) and
(iii)), Liquidated Damages shall accrue on the principal amount of the
Subordinated Debentures, and Additional Distributions shall accumulate on
the liquidation amount of the Trust Securities, each at a rate of .25% per
annum;
(iii) (A) the Trust has not exchanged Exchange Capital
Securities or the Corporation has not exchanged Exchange Guarantees or
Exchange Subordinated Debentures for all Capital Securities, Guarantees or
Subordinated Debentures, as the case may be, validly tendered, in
accordance with the terms of the Exchange Offer on or prior to the 45th day
after the date on which the Exchange Offer Registration Statement was
declared effective or (B) if applicable, the Shelf Registration Statement
in respect of a Shelf Registration Event attributable to any of the events
set forth in Sections 2(b)(i), (ii) and (iii) has been declared effective
and such Shelf Registration Statement ceases to be effective or usable for
resales (whether as a result of an event contemplated by Section 3(e) or
otherwise) at any time prior to the expiration of the Rule 144(k) Period
(other than after such time as all Securities have been disposed of
thereunder or otherwise cease to be Registrable Securities), then
Liquidated Damages shall accrue on the principal amount of Subordinated
Debentures, and Additional Distributions shall accumulate on the
liquidation amount of the Trust Securities, each at a rate of .25% per
annum commencing on (x) the 46th day after such effective date, in the case
of (A) above, or (y) the day such Shelf Registration Statement ceases to be
effective or usable for resales in the case of (B) above;
provided, however, that neither the Liquidated Damages rate on the
Subordinated Debentures, nor the Additional Distribution rate on the
liquidation amount of the Trust Securities, may exceed in the aggregate
.25% per annum; provided, further, however, that (1) upon the
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filing of the Exchange Offer Registration Statement or a Shelf Registration
Statement (in the case of clause (i) above), (2) upon the effectiveness of
the Exchange Offer Registration Statement or a Shelf Registration Statement
(in the case of clause (ii) above), or (3) upon the exchange of Exchange
Capital Securities, Exchange Guarantees and Exchange Debentures for all
Capital Securities, Guarantees and Subordinated Debentures validly tendered
(in the case of clause (iii)(A) above), or at such time as the Shelf
Registration Statement which had ceased to remain effective or usable for
resales again becomes effective and usable for resales (in the case of
clause (iii)(B) above), Liquidated Damages on the principal amount of the
Subordinated Debentures and Additional Distributions on the liquidation
amount of the Trust Securities as a result of such clause (or the relevant
subclause thereof) shall cease to accrue and accumulate.
Any amounts of Liquidated Damages and Additional Distributions due
pursuant to Section 2(e)(i), (ii) or (iii) above will be payable in cash on
the next succeeding February 15 and August 15, as the case may be, to
Holders on the relevant record dates for the payment of interest and
distributions pursuant to the Indenture and the Declaration, respectively.
(f) Specific Enforcement. Without limiting the remedies
available to the Holders, the Corporation and the Trust acknowledge that
any failure by the Corporation or the Trust to comply with its obligations
under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Holders for which there is no adequate remedy at
law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain
such relief as may be required to specifically enforce the Corporation's
and the Trust's obligations under Section 2(a) and Section 2(b) hereof.
(g) Distribution of Subordinated Debentures. Notwithstanding any
other provisions of this Agreement, in the event that Subordinated
Debentures are distributed to holders of Capital Securities in liquidation
of the Trust pursuant to the Declaration, (i) all references in this
Section 2 and in Section 3 to Securities, Registrable Securities and
Exchange Securities shall not include the Capital Securities and Capital
Securities Guarantee or Exchange Capital Securities and Exchange Capital
Securities Guarantee issued or to be issued in exchange therefor in the
Exchange Offer and (ii) all requirements for action to be taken by the
Trust in this Section 2 and in Section 3 shall cease to apply and all
requirements for action to be taken by the Corporation in this Section 2
and in Section 3 shall apply to the Subordinated Debentures and Exchange
Debentures issued or to be issued in exchange therefor in the Exchange
Offer.
3. Registration Procedures. In connection with the obligations
of the Corporation and the Trust with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Corporation and
the Trust shall:
13
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form (i) shall be
selected by the Corporation and the Trust, (ii) shall, in the case of
a Shelf Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and, in the case of an
Exchange Offer, be available for the exchange of Registrable
Securities, and (iii) shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; and use its best
efforts to cause such Registration Statement to become effective and
remain effective (and, in the case of a Shelf Registration Statement,
usable for resales) in accordance with Section 2 hereof; provided,
however, that if (1) such filing is pursuant to Section 2(b), or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Corporation
and the Trust shall furnish to and afford the Holders of the
Registrable Securities and each such Participating Broker-Dealer, as
the case may be, covered by such Registration Statement, their counsel
and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents
to be incorporated by reference therein and all exhibits thereto)
proposed to be filed. The Corporation and the Trust shall not file
any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be afforded
an opportunity to review prior to the filing of such document if the
Majority Holders or such Participating Broker-Dealer, as the case may
be, their counsel or the managing underwriters, if any, shall
reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may be; and
cause each Prospectus to be supplemented, if so determined by the
Corporation or the Trust or requested by the SEC, by any required
prospectus supplement and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the Securities
Act, and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder
applicable to it with respect to the disposition of all securities
covered by each Registration Statement during the Effectiveness Period
or the Applicable Period, as the case may be, in accordance with the
intended method or methods of distribution by the selling Holders
thereof described in this Agreement (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder
of Registrable Securities included in the Shelf Registration
Statement, at least three Business Days
14
prior to filing, that a Shelf Registration Statement with respect to
the Registrable Securities is being filed and advising such Holder
that the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders; and (ii)
furnish to each Holder of Registrable Securities included in the Shelf
Registration Statement and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such
Holder or underwriter may reasonably request, in order to facilitate
the public sale or other disposition of the Registrable Securities;
and (iii) consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable
Securities included in the Shelf Registration Statement in connection
with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, use its reasonable best
efforts to register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions
by the time the applicable Registration Statement is declared
effective by the SEC as any Holder of Registrable Securities covered
by a Registration Statement and each underwriter of an underwritten
offering of Registrable Securities shall reasonably request in writing
in advance of such date of effectiveness, and do any and all other
acts and things which may be reasonably necessary or advisable to
enable such Holder and underwriter to consummate the disposition in
each such jurisdiction of such Registrable Securities owned by such
Holder; provided, however, that the Corporation and the Trust shall
not be required to (i) qualify as a foreign corporation or as a dealer
in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general
consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject
itself to taxation in any such jurisdiction if it is not then so
subject;
(e) (1) in the case of a Shelf Registration or (2) if
Participating Broker-Dealers from whom the Corporation or the Trust
has received prior written notice that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as
provided in Section 3(t) hereof, are seeking to sell Exchange
Securities and are required to deliver Prospectuses, promptly notify
each Holder of Registrable Securities, or such Participating
Broker-Dealers, as the case may be, their counsel and the managing
underwriters, if any, and promptly confirm such notice in writing (i)
when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement or Prospectus
or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of
a Registration Statement or the qualification of the Registrable
Securities or the
15
Exchange Securities to be offered or sold by any Participating
Broker-Dealer in any jurisdiction described in paragraph 3(d) hereof
or the initiation of any proceedings for that purpose, (iv) in the
case of a Shelf Registration, if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Corporation and the Trust contained in any purchase agreement,
securities sales agreement or other similar agreement cease to be true
and correct in all material respects, (v) of the happening of any
event or the failure of any event to occur or the discovery of any
facts or otherwise, during the Effectiveness Period which makes any
statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which causes such
Registration Statement or Prospectus to omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) the
Corporation and the Trust's reasonable determination that a
post-effective amendment to the Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder
of Registrable Securities included within the coverage of such Shelf
Registration Statement, without charge, one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends (other
than with respect to restrictions requiring minimum transfers in
blocks having an aggregate principal or liquidation amount, as the
case may be, of $100,000) and in such denominations (consistent with
the provisions of the Indenture and the Declaration) and registered in
such names as the selling Holders or the underwriters may reasonably
request at least two Business Days prior to the closing of any sale of
Registrable Securities pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its
reasonable best efforts to prepare a supplement or post-effective
amendment to such Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
16
circumstances under which they were made, not misleading; and to
notify each Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Corporation
has amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) obtain a CUSIP number for all Exchange Capital Securities
and the Capital Securities (and if the Trust has made a distribution
of the Subordinated Debentures to the Holders of the Capital
Securities, the Subordinated Debentures or the Exchange Debentures) as
the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed certificates for the
Exchange Securities or the Registrable Securities, as the case may be,
in a form eligible for deposit with the Depositary;
(k) cause the Indenture, the Declaration, the Guarantee and the
Exchange Guarantee to be qualified under the Trust Indenture Act of
1939 (the "TIA") in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be, and effect
such changes to such documents as may be required for them to be so
qualified in accordance with the terms of the TIA and execute, and use
its best efforts to cause the relevant trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such
documents to be so qualified in a timely manner;
(l) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in
underwritten offerings and take all such other appropriate actions in
connection therewith as are reasonably requested by the holders of at
least 25% in aggregate principal or liquidation amount, as the case
may be, of the Registrable Securities in order to expedite or
facilitate the registration or the disposition of the Registrable
Securities;
(m) in the case of a Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by (x) the
Initial Purchaser, in the case where such Initial Purchaser holds
Securities acquired by it as part of its initial allotment and (y)
Holders of at least 25% in aggregate principal or liquidation amount,
as the case may be, of the Registrable Securities covered thereby:
(i) make such representations and warranties to Holders of such
Registrable Securities and the underwriters (if any), with respect to
the business of the Trust, the Corporation and its subsidiaries as
then conducted and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers of
debt securities to underwriters in underwritten offerings, and confirm
the same if and when requested; (ii) obtain opinions of counsel to the
Corporation and the Trust and updates thereof (which may be in the
form of a reliance letter) in form and substance reasonably
satisfactory to the
17
managing underwriters (if any) and the Holders of a majority in
principal amount of the Registrable Securities being sold, addressed
to each selling Holder and the underwriters (if any) covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
such underwriters (it being agreed that the matters to be covered by
such opinion may be subject to customary qualifications and
exceptions); (iii) obtain "cold comfort" letters and updates thereof
in form and substance reasonably satisfactory to the managing
underwriters from the independent certified public accountants of the
Corporation and the Trust (and, if necessary, any other independent
certified public accountants of any subsidiary of the Corporation and
the Trust or of any business acquired by the Corporation and the Trust
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings and such other matters as
reasonably requested by such underwriters in accordance with Statement
on Auditing Standards No. 72; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 4 hereof
(or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount or liquidation amount, as the
case may be, of Registrable Securities covered by such Registration
Statement and the managing underwriters and agents) customary for such
agreements with respect to all parties to be indemnified pursuant to
said Section (including, without limitation, such underwriters and
selling Holders). The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required to
be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, make reasonably available for inspection by any
selling Holder of such Registrable Securities or Participating
Broker-Dealer, as applicable, who certifies to the Corporation and the
Trust that it has a current intention to sell Registrable Securities
pursuant to the Shelf Registration, any underwriter participating in
any such disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be,
or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during the Corporation's normal business hours, all
financial and other records, pertinent corporate documents and
properties of the Trust, the Corporation and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Trust, the
Corporation and its subsidiaries to supply all relevant information in
each case reasonably requested by any such Inspector in connection
with such Registration Statement. Records which the Corpo-
18
ration and the Trust determine, in good faith, to be confidential and
any Records which it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or
omission in such Registration Statement, (ii) subject to the lost
sentence of this Section 3(n), the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or is necessary in connection with any action, suit or
proceeding or (iii) the Information in such Records has been made
generally available to the public (other than by an Inspector or a
selling Holder in breach of its obligations hereunder). Each selling
Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree in writing that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Trust or the Corporation unless
and until such is made generally available to the public through no
fault of an Inspector or a Selling Holder. Each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer
will be required to further agree in writing that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, or in connection with any action, suit or
proceeding give notice to the Corporation and allow the Corporation at
its expense to undertake appropriate action to prevent disclosure of
the Records deemed confidential;
(o) comply with all applicable rules and regulations of the SEC
so long as any provision of this Agreement shall be applicable and
make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Corporation after the effective date
of a Registration Statement, which statements shall cover said
12-month periods;
(p) upon consummation of an Exchange Offer or a Private
Exchange, if requested by a Trustee, obtain an opinion of counsel to
the Corporation addressed to the Trustee for the benefit of all
Holders of Registrable Securities participating in the Exchange Offer
or the Private Exchange, as the case may be, substantially to the
effect that (i) the Corporation and the Trust, as the case requires,
has duly authorized, executed and delivered the Exchange Securities
and Private Exchange Securities, and (ii) each of the Exchange
Securities or the Private Exchange Securities, as the case may be,
constitutes a legal, valid and binding obligation of the Corporation
or the Trust, as the case requires, enforceable against the
Corporation or the Trust, as the case requires, in accordance with its
respective terms (in each case, with customary exceptions);
19
(q) if an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to
the Corporation or the Trust, as applicable (or to such other Person
as directed by the Corporation or the Trust, respectively), in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Corporation or the Trust, as
applicable, shall ▇▇▇▇, or cause to be marked, on such Registrable
Securities delivered by such Holders that such Registrable Securities
are being cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall
such Registrable Securities be marked as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD;
(s) take all other steps necessary to effect the registration of
the Registrable Securities covered by a Registration Statement
contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," which section shall be
reasonably acceptable to the Initial Purchaser or another
representative of the Participating Broker-Dealers, and which shall
contain a summary statement of the positions taken or policies made by
the staff of the SEC with respect to the potential "underwriter"
status of any broker-dealer (a "Participating Broker-Dealer") that
holds Registrable Securities acquired for its own account as a result
of market-making activities or other trading activities and that will
be the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of Exchange Securities to be received by such broker-dealer in
the Exchange Offer, whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions or
policies, in the reasonable judgment of the Initial Purchaser or such
other representative, represent the prevailing views of the staff of
the SEC, including a statement that any such broker-dealer who
receives Exchange Securities for Registrable Securities pursuant to
the Exchange Offer may be deemed a statutory underwriter and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities, (ii) furnish
to each Participating Broker-Dealer who has delivered to the
Corporation the notice referred to in Section 3(e), without charge, as
many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such Participating Broker-Dealer
may reasonably request (each of the Corporation and the Trust hereby
consents to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto by
any Person subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities
covered by the
20
Prospectus or any amendment or supplement thereto), (iii) use its
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 lawfully
delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such
Persons must comply with such requirements under the Securities Act
and applicable rules and regulations in order to resell the Exchange
Securities; provided, however, that such period shall not be required
to exceed 90 days (or such longer period if extended pursuant to the
last sentence of Section 3 hereof) (the "Applicable Period"), and (iv)
include in the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in the
Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer
will not be deemed to admit that it is an underwriter within the meaning of
the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement,
the Corporation and the Trust agree to deliver to the Initial
Purchaser or to another representative of the Participating
Broker-Dealers, if requested by the Initial Purchaser or such other
representative of Participating Broker-Dealers, on behalf of the
Participating Broker-Dealers upon consummation of the Exchange Offer
(i) an opinion of counsel in form and substance reasonably
satisfactory to the Initial Purchaser or such other representative of
the Participating Broker-Dealers, covering the matters customarily
covered in opinions requested in connection with Exchange Offer
Registration Statements and such other matters as may be reasonably
requested (it being agreed that the matters to be covered by such
opinion may be subject to customary qualifications and exceptions),
(ii) an officers' certificate containing certifications substantially
similar to those set forth in Section 5(f) of the Purchase Agreement
and such additional certifications as are customarily delivered in a
public offering of debt securities and (iii) as well as upon the
effectiveness of the Exchange Offer Registration Statement, a comfort
letter, in each case, in customary form if permitted by Statement on
Auditing Standards No. 72.
The Corporation or the Trust may require each seller of
Registrable Securities as to which any registration is being effected to
furnish to the Corporation or the Trust, as
21
applicable, such information regarding such seller as may be required by
the staff of the SEC to be included in a Registration Statement. The
Corporation or the Trust may exclude from such registration the Registrable
Securities of any seller who fails to furnish such information within a
reasonable time after receiving such request. The Corporation shall have
no obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if
Participating Broker-Dealers who have notified the Corporation and the
Trust that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(t) hereof, are
seeking to sell Exchange Securities and are required to deliver
Prospectuses, each Holder agrees that, upon receipt of any notice from the
Corporation or the Trust of the happening of any event of the kind
described in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
3(i) hereof or until it is advised in writing (the "Advice") by the
Corporation and the Trust that the use of the applicable Prospectus may be
resumed, and, if so directed by the Corporation and the Trust, such Holder
will deliver to the Corporation or the Trust (at the Corporation's or the
Trust's expense, as the case requires) all copies in such Holder's
possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities or
Exchange Securities, as the case may be, current at the time of receipt of
such notice. If the Corporation or the Trust shall give any such notice to
suspend the disposition of Registrable Securities or Exchange Securities,
as the case may be, pursuant to a Registration Statement, the Corporation
and the Trust shall use their reasonable best efforts to file and have
declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Registration Statement and shall extend the period during
which such Registration Statement is required to be maintained effective
and usable for resales pursuant to this Agreement by the number of days in
the period from and including the date of the giving of such notice to and
including the date when the Corporation and the Trust shall have made
available to the Holders (x) copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Corporation and the Trust shall, jointly and
severally, indemnify and hold harmless the Initial Purchaser, each Holder,
each underwriter who participates in an offering of the Registrable
Securities, each Participating Broker-Dealer, each Person, if any, who
controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each of their
respective partners, directors, officers, employees and agents, as follows:
(i) from and against any and all loss, liability, claim, damage
and expense whatsoever, joint or several, as incurred, arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement
22
(or any amendment thereto), covering Registrable Securities or
Exchange Securities, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) from and against any and all loss, liability, claim, damage
and expense whatsoever, joint or several, as incurred, to the extent
of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any court or governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the prior
written consent of the Corporation; and
(iii) from and against any and all expenses whatsoever, as
incurred (including reasonable fees and disbursements of counsel
chosen by such Holder, such Participating Broker-Dealer, or any
underwriter (except to the extent otherwise expressly provided in
Section 4(c) hereof)), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any court or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) of this Section 4(a);
provided, however, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished in
writing to the Corporation or the Trust by such Holder, such Participating
Broker-Dealer or any underwriter with respect to such Holder, Participating
Broker-Dealer or any underwriter, as the case may be, expressly for use in
a Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto) and (ii) the Corporation and the Trust
shall not be liable to any such Holder, Participating Broker-Dealer, any
underwriter or controlling person, with respect to any untrue statement or
alleged untrue statement or omission or alleged omission in any preliminary
Prospectus to the extent that any such loss, liability, claim, damage or
expense of any Holder, Participating Broker-Dealer, any underwriter or
controlling person results from the fact that such Holder, any underwriter
or Participating Broker-Dealer sold Securities to a person to whom there
was not sent or given, at or prior to the written confirmation of such
sale, a copy of the final Prospectus as then amended or supplemented if the
Corporation had previously furnished copies thereof to such Holder,
underwriter or Participating Broker-Dealer and the loss, liability, claim,
damage or expense of such Holder, underwriter, Participating Broker-
23
Dealer or controlling person results from an untrue statement or omission
of a material fact contained in the preliminary Prospectus which was
corrected in the final Prospectus. Any amounts advanced by the Corporation
or the Trust to an indemnified party pursuant to this Section 4 as a result
of such losses shall be returned to the Corporation or the Trust if it
shall be finally determined by such a court in a judgment not subject to
appeal or final review that such indemnified party was not entitled to
indemnification by the Corporation or the Trust.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Corporation, the Trust, any underwriter and the other
selling Holders and each of their respective directors, officers (including
each officer of the Corporation and the Trust who signed the Registration
Statement), employees and agents and each Person, if any, who controls the
Corporation, the Trust, any underwriter or any other selling Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all loss, liability, claim, damage
and expense whatsoever described in the indemnity contained in Section 4(a)
hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Corporation or the Trust by such
selling Holder with respect to such Holder expressly for use in such
Registration Statement (or any amendment thereto), or any such Prospectus
(or any amendment or supplement thereto); provided, however, that in the
case of a Shelf Registration Statement, no such Holder shall be liable for
any claims hereunder in excess of the amount of net proceeds received by
such Holder from the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it
may have under this Section 4, except to the extent that it is materially
prejudiced by such failure. An indemnifying party may participate at its
own expense in the defense of such action, or, if it so elects within a
reasonable time after receipt of such notice, assume the defense of any
suit brought to enforce any such claim; but if it so elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
approved by the indemnified party or parties which approval shall not be
unreasonably withheld. In the event that an indemnifying party elects to
assume the defense of any such suit and retain such counsel, the
indemnified party or parties shall bear the fees and expenses of any
additional counsel thereafter retained by such indemnified party or
parties; provided, however, that the indemnified party or parties shall
have the right to employ counsel (in addition to local counsel) to
represent the indemnified party or parties who may be subject to liability
arising out of any action in respect of which indemnity may be sought
against the indemnifying party if, in the reasonable judgment of counsel
for the indemnified party or parties, there may be legal defenses available
to such indemnified party or parties which are
24
different from or in addition to those available to the indemnifying party,
in which event the fees and expenses of appropriate separate counsel shall
be borne by the indemnifying party. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to local counsel), separate from its own counsel, for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release in form and substance satisfactory to the
indemnified parties of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified
parties although applicable in accordance with its terms, the Corporation,
the Trust, and the Holders shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Corporation, the Trust, and the
Holders, as incurred; provided that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇)
shall be entitled to contribution from any Person that was not guilty of
such fraudulent misrepresentation. As between the Corporation, the Trust,
and the Holders, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement in such proportion as shall be appropriate to
reflect the relative fault of the Corporation and Trust, on the one hand,
and the Holders, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or expense,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Corporation and the Trust, on
the one hand, and of the Holders, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Corporation or the
Trust, on the one hand, or by or on behalf of the Holders, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Corporation, the Trust and the Holders of the Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
Section 4 were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each director, officer, employee, agent and Person, if any, who
controls a Holder or such Affiliate within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have
25
the same rights to contribution as such Holder, and each director of each
of the Corporation or the Trust, each officer of each of the Corporation or
the Trust who signed the Registration Statement, and each Person, if any,
who controls each of the Corporation and the Trust within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as each of the Corporation or the
Trust.
5. Participation in an Underwritten Registration. No Holder
may participate in an underwritten registration hereunder unless such
Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in the underwriting arrangement approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under
the terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable
Securities covered by the Shelf Registration Statement who desire to do so
may sell the securities covered by such Shelf Registration in an
underwritten offering, subject to the provisions of section 3(l) hereof. In
any such underwritten offering, the underwriter or underwriters and manager
or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount or liquidation amount,
as applicable, of the Registrable Securities included in such offering;
provided, however, that such underwriters and managers must be reasonably
satisfactory to the Corporation and the Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Corporation or
the Trust is subject to the reporting requirements of Section 13 or 15 of
the Exchange Act and any Registrable Securities remain outstanding, each of
the Corporation and the Trust, as the case may be, will file the reports
required to be filed by it under the Securities Act and Section 13(a) or
15(d) of the Exchange Act and the rules and regulations adopted by the SEC
thereunder, provided that if it ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable Securities
(a) make publicly available such information as is necessary to permit
sales of its securities pursuant to Rule 144 under the Securities Act, (b)
deliver such information to a prospective purchaser as is necessary to
permit sales of its securities pursuant to Rule 144A under the Securities
Act, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to
enable such Holder to sell its Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided
by (i) Rule 144 under the Securities Act, as such rule may be amended from
time to time, (ii) Rule 144A under the Securities Act, as such rule may be
amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Corporation and the Trust will deliver to such
Holder a written statement as to whether it has complied with such
requirements.
26
(b) No Inconsistent Agreements. The Corporation or the Trust
has not entered into, nor will the Corporation or the Trust on or after the
date of this Agreement enter into, any agreement which is inconsistent with
the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the
Corporation's or the Trust's other issued and outstanding securities under
any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Corporation and the Trust has obtained
the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or departure; provided that no
amendment, modification or supplement or waiver or consent to the departure
with respect to the provisions of Section 4 hereof shall be effective as
against any Holder of Registrable Securities unless consented to in writing
by such Holder of Registrable Securities. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended, without the consent of any
Holder of Registrable Securities, by written agreement signed by the
Corporation, the Trust and the Initial Purchaser, to cure any ambiguity,
correct or supplement any provision of this Agreement that may be
inconsistent with any other provision of this Agreement or to make any
other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented,
and waivers and consents to departures from the provisions hereof may be
given by written agreement signed by the Corporation, the Trust and the
Initial Purchaser to the extent that any such amendment, modification,
supplement, waiver or consent is, in their reasonable judgment, necessary
or appropriate to comply with applicable law (including any interpretation
of the Staff of the SEC) or any change therein and (iii) to the extent any
provision of this Agreement relates to the Initial Purchaser, such
provision may be amended, modified or supplemented, and waivers or consents
to departures from such provisions may be given, by written agreement
signed by the Initial Purchaser, the Corporation and the Trust.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by
such Holder to the Corporation or the Trust by means of a notice given in
accordance with the provisions of this Section 7(d), which address
initially is, with respect to the Initial Purchaser, the address set forth
in the Purchase Agreement; and (ii) if to the Corporation or the Trust,
initially at the Corporation's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 7(d).
27
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee, at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
the Initial Purchaser, including, without limitation and without the need
for an express assignment, subsequent Holders; provided, however, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Registrable Securities, in any manner, whether by operation of law
or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities, such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. The Initial Purchaser and any
Participating Broker-Dealer shall be a third party beneficiary of the
agreements made hereunder between the Corporation and the Trust, on the one
hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders
hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
28
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE MATTERS
CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE
CORPORATION, ON BEHALF OF ITSELF AND THE SUBSIDIARIES (INCLUDING, WITHOUT
LIMITATION, THE TRUST), IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
29
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
FIRST KEYSTONE FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
FIRST KEYSTONE CAPITAL TRUST I
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Administrative Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Administrative Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Administrative Trustee
Confirmed and accepted as of
the date first above written:
SANDLER ▇'▇▇▇▇▇ & PARTNERS, L.P.
By: SANDLER ▇'▇▇▇▇▇ & PARTNERS CORP.,
the sole general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
30