REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 24, 1996 (this
"Agreement"), among U. S. Bancorp, an Oregon corporation (the "Company"), U. S.
Bancorp Capital I, a Delaware statutory business trust (the "Issuer Trust"), and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ Brothers Inc., and Salomon Brothers Inc, as the
initial purchasers (the "Initial Purchasers") of the 8.27% Capital Securities,
Series A, of the Issuer Trust, which are guaranteed by the Company.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "Administrative Trustees" means each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, solely in such person's capacity as Administrative Trustee of
the Trust formed pursuant to the Trust Agreement.
(b) "Capital Securities" means the 8.27% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security), to be issued under the Trust
Agreement and sold by the Issuer Trust to the Initial Purchasers, and securities
issued in exchange therefor, other than Debentures, or in lieu thereof pursuant
to the Trust Agreement.
(c) "Closing Date" means the date on which the Capital Securities are
initially issued.
(d) "Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(e) "Debentures" means the 8.27% Junior Subordinated Deferrable
Interest Debentures due December 15, 2026 of the Company to be issued under the
Indenture, and securities issued in exchange therefor or in lieu thereof
pursuant to the Indenture.
(f) "Effective Time," in the case of (i) an Exchange Offer, means the
time and date as of which the Commission declares the Exchange Offer
Registration Statement effective or as of which the Exchange Offer Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, means the
time and date as of which the Commission declares the Shelf Registration
effective or as of which the Shelf Registration otherwise becomes effective.
(g) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
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(h) "Exchange Offer" has the meaning assigned thereto in Section 2(a).
(i) "Exchange Offer Registration Statement" has the meaning assigned
thereto in Section 2(a) hereof.
(j) "Exchange Registration" has the meaning assigned thereto in Section
3(f).
(k) "Exchange Securities" has the meaning assigned thereto in Section
2(a).
(l) "Guarantee" means the guarantee of the Capital Securities by the
Company under the Guarantee Agreement, dated as of December 24, 1996, between
the Company and The First National Bank of Chicago, as Guarantee Trustee.
(m) The term "holder" means each of the Initial Purchasers for so long
as it owns any Registrable Securities, and such of its respective successors and
assigns who acquire Registrable Securities, directly or indirectly, from such
person or from any successor or assign of such person, in each case for so long
as such person owns any Registrable Securities.
(n) "Indenture" means the Junior Subordinated Indenture, dated as of
December 24, 1996, between the Company and The First National Bank of Chicago,
as Trustee, as the same shall be amended from time to time.
(o) "Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
(p) The term "person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(q) "Registrable Securities" means the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when (i) in the
circumstances contemplated by Section 2(a) hereof, such Securities have been
exchanged for Exchange Securities in an Exchange Offer as contemplated in
Section 2(a) (provided that any Exchange Securities received by a broker-dealer
in an Exchange Offer in exchange for Registrable Securities that were not
acquired by the broker-dealer directly from the Company will also be Registrable
Securities through and including the earlier of the 180th day after the Exchange
Offer is completed or such time as such broker-dealer no longer owns such
Exchange Securities); (ii) in the circumstances contemplated by Section 2(b), a
registration statement registering such Securities under the Securities Act has
been declared or becomes effective and such Securities have been sold or
otherwise transferred by the holder thereof pursuant to such effective
registration statement; (iii) such Securities are sold pursuant to Rule 144
under circumstances in which any legend borne by such Securities relating to
restrictions on transferability thereof, under the Securities Act or otherwise,
is removed or such Securities are eligible to be sold pursuant to paragraph (k)
of Rule 144; or (iv) such Securities shall cease to be outstanding.
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(r) "Registration Default" has the meaning assigned thereto in Section
2(c).
(s) "Registration Default Interest" has the meaning assigned thereto in
Section 2(c).
(t) "Registration Default Distributions" has the meaning assigned
thereto in Section 2(c).
(u) "Registration Expenses" has the meaning assigned thereto in Section
4.
(v) "Resale Period" has the meaning assigned thereto in Section 2(a).
(w) "Restricted Holder" means (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business or (iii) a
holder who has arrangements or understandings with any person to participate in
the Exchange Offer for the purpose of distributing Exchange Securities.
(x) "Rule 144," "Rule 405" and "Rule 415" means, in each case, such
rule promulgated under the Securities Act.
(y) "Securities" means, collectively, the Capital Securities, the
Guarantee and the Debentures.
(z) "Securities Act" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
(aa) "Shelf Registration" has the meaning assigned thereto in Section
2(b) hereof.
(ab) "Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of December 24, 1996, among the Company, as Depositor, The First
National Bank of Chicago, as Property Trustee, and First Chicago Delaware Inc.,
as Delaware Trustee, and the Administrative Trustees named therein.
(ac) "Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
(ad) "Trust Securities" means, collectively, the Common Securities to
be issued under the Trust Agreement to the Company and the Capital Securities.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a
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whole and not to any particular Section or other subdivision. Unless the context
otherwise requires, any reference to a statute, rule or regulation refers to the
same (including any successor statute, rule or regulation thereto) as it may be
amended from time to time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b), the Company and the Issuer
Trust agree to use their reasonable best efforts to file under the Securities
Act within 150 days after the Closing Date, a registration statement (the
"Exchange Offer Registration Statement") relating to an offer to exchange (the
"Exchange Offer") any and all of the Securities for a like aggregate amount of
capital securities issued by the Issuer Trust and guaranteed by the Company and
underlying junior subordinated deferrable interest debentures of the Company,
which capital securities, guarantee and debentures have the same terms as the
Capital Securities, the Guarantee and the Debentures, respectively (and are
entitled to the benefits of trust indentures which have been qualified under the
Trust Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act, do not contain
restrictions on transfers and do not contain provisions for the additional
interest and additional distributions contemplated in Section 2(c) below (such
new securities hereinafter called "Exchange Securities"). The Company and the
Issuer Trust agree to use their reasonable best efforts to cause the Exchange
Offer Registration Statement to become effective under the Securities Act within
180 days after the Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all applicable
tender offer rules and regulations under the Exchange Act. The Company and the
Issuer Trust further agree to use their reasonable best efforts to commence and
complete the Exchange Offer promptly after the Exchange Offer Registration
Statement has become effective. The Company and the Issuer Trust agree to hold
the Exchange Offer open for at least 30 days (or longer if required by
applicable law) after the date notice of the Exchange Offer has been mailed to
the holders of the Capital Securities and the Debentures and exchange Exchange
Securities for all Securities that have been validly tendered and not validly
withdrawn by the holder thereof on or prior to the expiration of the Exchange
Offer. The Exchange Offer will be deemed completed only if the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Securities are, upon receipt, transferable by each such holder without
restriction imposed thereon by the Securities Act or the Exchange Act and
without material restrictions imposed thereon by the blue sky or securities laws
of a substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier to occur
of (i) the Company and the Issuer Trust having exchanged the Exchange Securities
for all outstanding Securities pursuant to the Exchange Offer and (ii) the
Company having exchanged, pursuant to the Exchange Offer, Exchange Securities
for all Securities that have been validly tendered and not validly withdrawn
before the expiration of the Exchange Offer, which shall be on a date that is at
least 30 days following the commencement of the Exchange Offer. The Company and
the Issuer Trust agree (x) to include in the registration statement a prospectus
for use in connection with any resales of Exchange Securities by a holder that
is a broker-dealer, other than resales of Exchange Securities received by a
broker-dealer pursuant to the Exchange Offer in exchange for Registrable
Securities acquired by such broker-dealer
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directly from the Issuer Trust, and (y) to keep the Exchange Offer Registration
Statement effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the earlier of
(i) either (a) the expiration of the 180th day after the Exchange Offer has been
completed or (b) in the event the Company and the Issuer Trust have at any time
notified any broker-dealers pursuant to Section 3(f)(ii), the day beyond the
180th day after the Exchange Offer has been completed that reflects an
additional period of days equal to the number of days during all of the periods
from and including the dates the Company and the Issuer Trust give notice
pursuant to Section 3(f)(ii)(F) to and including the date when broker-dealers
receive an amended or supplemented prospectus necessary to permit resales of
Exchange Securities or to and including the date on which the Company and the
Issuer Trust give notice that the resale of Exchange Securities under the
Exchange Offer Registration Statement may resume or (ii) such time as such
broker-dealers no longer own any Registrable Securities. With respect to such
registration statement, each broker-dealer that holds Exchange Securities
received in an Exchange Offer in exchange for Registerable Securities not
acquired by it directly from the Company shall have the benefit of the rights of
indemnification and contribution set forth in Section 6.
(b) If (i) prior to the consummation of the Exchange Offer existing
applicable law or Commission interpretations are changed such that the capital
securities, related guarantee of the Company and underlying debentures of the
Company to be received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction imposed by the Securities
Act, (ii) the Exchange Offer Registration Statement is not declared effective
within 180 days of the Closing Date, or (iii) the Company has received an
opinion of counsel, rendered by a law firm having a recognized national tax
practice, to the effect that, as a result of the consummation of the Exchange
Offer, there is more than an insubstantial risk that (a) the Issuer Trust is, or
will be, subject to United States federal income tax with respect to income
received or accrued on the Debentures, (b) interest payable by the Company on
the Debentures is not, or will not be, deductible by the Company, in whole or in
part, for United States federal income tax purposes, or (c) the Issuer Trust is,
or will be, subject to more than a de minimis amount of other taxes, duties or
other governmental charges, then in addition to or in lieu of conducting the
Exchange Offer contemplated by Section 2(a), the Company and the Issuer Trust
shall file under the Securities Act as promptly as practicable a "shelf"
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (the "Shelf Registration"). The Administrative Trustees will promptly
deliver to the holders of the Capital Securities, the Property Trustee and the
Delaware Trustee, or the Company will promptly deliver to the holders of the
Debentures, if not the Issuer Trust, written notice that the Company and the
Issuer Trust will be complying with the provisions of this Section 2(b). The
Company and the Issuer Trust agree to use their reasonable best efforts to cause
the Shelf Registration to become or be declared effective and to keep such Shelf
Registration continuously effective for a period ending on the earlier of (i)
either (x) the third anniversary of the Closing Date or (y) in the event the
Company and the Issuer Trust have at any time
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suspended the use of the prospectus contained in the Shelf Registration pursuant
to Section 3(c), the date beyond the third anniversary of the Closing Date that
reflects an additional period of days equal to the number of days during all of
the periods from and including the dates the Company and the Issuer Trust give
notice of such suspension pursuant to Section 3(c) to and including the date
when holders of Registrable Securities receive an amended or supplemented
prospectus necessary to permit resales as Registrable Securities under the Shelf
Registration or to and including the date on which the Company and Issuer Trust
give notice that the resale of Registrable Securities may resume or (ii) such
time as there are no longer any Registrable Securities outstanding. The Company
and the Issuer Trust further agree to supplement or make amendments to the Shelf
Registration, as and when required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration or by the
Securities Act or rules and regulations thereunder for shelf registration, and
the Company and the Issuer Trust agree to furnish to the holders of the
Registrable Securities copies of any such supplement or amendment prior to its
being used or promptly following its filing with the Commission.
(c) If either the Company or the Issuer Trust fails to comply with this
Agreement or if the Exchange Offer Registration Statement or the Shelf
Registration fails to become effective (any such event a "Registration
Default"), then, as liquidated damages, registration default interest (the
"Registration Default Interest") shall become payable in respect of the
Debentures, and corresponding registration default Distributions (the
"Registration Default Distributions"), shall become payable on the Trust
Securities as follows:
(i) if (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration is filed with the Commission on or prior to
the 180th day after the Closing Date or (B) notwithstanding that the
Company and the Issuer Trust have consummated or will consummate an
Exchange Offer, the Company and the Issuer Trust are required to file a
Shelf Registration and such Shelf Registration is not filed on or prior
to the date required by this Agreement, then commencing on the day
after either such required filing date, Registration Default Interest
shall accrue on the principal amount of the Debentures, and
Registration Default Distributions shall accumulate on the Liquidation
Amount of the Trust Securities, each at a rate of 0.25% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration is declared effective by the Commission on or
prior to the 30th day after the applicable required filing date or (B)
notwithstanding that the Company and the Issuer Trust have consummated
or will consummate an Exchange Offer, the Company and the Issuer are
required to file a Shelf Registration and such Shelf Registration is
not declared effective by the Commission on or prior to the 30th day
after the date such Shelf Registration was required to be filed, then
commencing on the 31st day after the applicable required filing date,
Registration Default Interest shall accrue on the principal amount of
the Debentures, and Registration Default Distributions shall accumulate
on the Liquidation Amount of the Trust Securities, each at a rate of
0.25% per annum; or
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(iii) if (A) the Issuer Trust and the Company have not
exchanged Exchange Securities for all Securities validly tendered and
not withdrawn, in accordance with the terms of the Exchange Offer on or
prior to the 30th day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) if applicable, the
Shelf Registration has been declared effective and such Shelf
Registration ceases to be effective at any time prior to the third
anniversary of the Closing Date (other than after such time as there
are no longer any Registrable Securities), then Registration Default
Interest shall accrue on the principal amount of Debentures, and
Registration Default Distributions shall accumulate on the Liquidation
Amount of the Trust Securities, each at a rate of 0.25% per annum
commencing on (x) the 31st day after such effective date, in the case
of (A) above, or (y) the day such Shelf Registration ceases to be
effective in the case of (B) above;
provided, however, that neither the Registration Default Interest rate on the
Debentures, nor the Registration Default Distributions rate on the Liquidation
Amount of the Trust Securities, shall exceed in the aggregate 0.25% per annum;
provided further, however, that (1) upon the filing of the Exchange Offer
Registration Statement or a Shelf Registration (in the case of clause (i)
above), (2) upon the effectiveness of the Exchange Offer Registration Statement
or a Shelf Registration (in the case of clause (ii) above), or (3) upon the
exchange of Exchange Securities for all securities validly tendered and not
withdrawn (in the case of clause (iii) (A) above), or upon the effectiveness of
the Shelf Registration which had ceased to remain effective (in the case of
clause (iii) (B) above), Registration Default Interest on the Debentures, and
Registration Default Distributions on the Liquidation Amount of the Trust
Securities as a result of such clauses (or the relevant subclauses thereof), as
the case may be, shall cease to accrue or accumulate.
(d) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post-effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
(e) Notwithstanding any other provision of this Agreement, in the event
that Debentures are distributed to holders of Capital Securities in liquidation
of the Issuer Trust pursuant to the Trust Agreement (a) all references in this
Section 2 and Section 3 to Securities, Registrable Securities and Exchange
Securities shall not include the Capital Securities and Guarantee or Exchange
Securities issued or to be issued in exchange therefor in the Exchange Offer,
(ii) all requirements for action to be taken by the Issuer Trust in this Section
2 and Section 3 shall cease to apply and all requirements for action to be taken
by the Company in this Section 2 and Section 3 shall apply to Debentures and
Exchange Securities issued or to be issued in exchange therefor in the Exchange
Offer.
3. Registration Procedures.
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The following provisions shall apply to registration statements filed
pursuant to Section 2:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company and the Issuer Trust shall qualify
the Indenture, the Trust Agreement and the Guarantee under the Trust Indenture
Act of 1939.
(b) In connection with the Company's and the Issuer Trust's obligations
with respect to the Shelf Registration, if applicable, the Company and the
Issuer Trust shall, as soon as reasonably practicable (or as otherwise specified
herein):
(i) prepare and file with the Commission a registration
statement with respect to the Shelf Registration on any form which may
be utilized by the Issuer Trust and the Company and which shall permit
the disposition of the Registrable Securities in accordance with the
intended method or methods thereof, as specified in writing by the
holders of the Registrable Securities, and use its best efforts to
cause such registration statement to become effective as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of
such registration statement for the period specified in Section 2(b)
and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
registration statement, and furnish to the holders of the Registrable
Securities copies of any such supplement or amendment simultaneously
with or prior to its being used or filed with the Commission;
(iii) comply, as to all matters within the Company's and the
Issuer Trust's control, with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities covered
by such registration statement in accordance with the intended methods
of disposition by the holders thereof provided for in such registration
statement;
(iv) provide to any of (A) the holders of the Registrable
Securities to be included in such registration statement, (B) the
underwriters (which term, for purposes of this Registration Rights
Agreement, shall include a person deemed to be an underwriter within
the meaning of Section 2(11) of the Securities Act), if any, thereof,
(C) the sales or placement agent, if any, therefor, (D) counsel for
such underwriters or agent and (E) not more than one counsel for all
the holders of such Registrable Securities who so request of the
Company in writing the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed
with the Commission and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable
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times at the Company's principal place of business or such other
reasonable place for inspection by the persons referred to in Section
3(b)(iv), who shall certify to the Company and the Issuer Trust that
they have a current intention to sell the Registrable Securities
pursuant to the Shelf Registration, such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company in writing as being
confidential, until such time as (A) such information becomes a matter
of public record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such person shall be
required so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company prompt
prior written notice of such requirement), or (C) such information is
required to be set forth in such registration statement or the
prospectus included therein or in an amendment to such registration
statement or an amendment or supplement to such prospectus in order
that such registration statement, prospectus, amendment or supplement,
as the case may be, does not contain an untrue statement of a material
fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof, and confirm such
notice in writing, (A) when such registration statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same
has become effective, (B) of any comments by the Commission and by the
Blue Sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to such registration statement or prospectus or for
additional information, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement
or the initiation or threat of any proceedings for that purpose, (D) if
at any time the representations and warranties of the Company or the
Issuer Trust contemplated by Section 3(b)(xv) or Section 5 cease to be
true and correct in all material respects, (E) of the receipt by the
Company or the Issuer Trust of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale
in any jurisdiction or the initiation or threat of any proceeding for
such purpose, or (F) at any time when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
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requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder or contains an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(vii) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder of Registrable
Securities, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies should
be included therein relating to the terms of the sale of such
Registrable Securities, including information with respect to the
principal amount of Registrable Securities being sold by such holder or
agent or to any underwriters, the name and description of such holder,
agent or underwriter, the offering price of such Registrable Securities
and any discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the offering of the Registrable
Securities to be sold by such holder or agent or to such underwriters;
and make all required filings of such prospectus supplement or
post-effective amendment promptly after notification of the matters to
be incorporated in such prospectus supplement or post-effective
amendment;
(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(b)(iv) an
executed copy (or, in the case of a holder of Registrable Securities, a
conformed copy) of such registration statement, each such amendment or
supplement thereto (in each case including all exhibits thereto and (in
the case of a holder of Registrable Securities, upon request) documents
incorporated by reference therein) and such number of copies of such
registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity in
all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, and such other documents, as
such holder, agent, if any, or underwriter, if any, may reasonably
request in order to facilitate the offering and disposition of the
Registrable Securities owned by such holder, offered or sold by such
agent or underwritten by such underwriter and to permit such holder,
agent or underwriter to satisfy the prospectus delivery requirements of
the Securities Act; and the Company and the Issuer Trust hereby consent
to the use of such prospectus (including any such preliminary or
summary prospectus) and any amendment or supplement thereto by each
such holder
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and by any such agent and underwriter, in each case in the form most
recently provided to such person by the Company or the Issuer Trust, in
connection with the offering and sale of the Registrable Securities
covered by the prospectus (including any such preliminary or summary
prospectus) or any supplement or amendment thereto;
(x) use its reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such registration
statement under such securities laws or blue sky laws of such United
States jurisdictions as any holder of such Registrable Securities and
each placement or sales agent, if any, therefor and underwriter, if
any, thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain
effective under Section 2(b) and for so long as may be necessary to
enable any such holder, agent or underwriter to complete its
distribution of Securities pursuant to such registration statement but
in any event not later than the date through which the Company and the
Issuer Trust are required to keep the Shelf Registration effective
pursuant to Section 2(b) and (C) take any and all other actions as may
be reasonably requested to enable each such holder, agent, if any, or
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that
neither the Company nor the Issuer Trust shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(b)(x), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between it and
its stockholders;
(xi) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to be obtained by the Company or
the Issuer Trust to effect the Shelf Registration or the offering or
sale in connection therewith or to enable the selling holder or holders
to offer, or to consummate the disposition of, their Registrable
Securities;
(xii) cooperate with the holders of the Registrable Securities
and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall be printed,
lithographed or engraved, or produced by any combination of such
methods, and which shall not bear any restrictive legends, except as
may be required by applicable law; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters
may request at least two business days prior to any sale of the
Registrable Securities;
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(xiii) provide a CUSIP number for all applicable Registrable
Securities, not later than the Effective Time;
(xiv) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including customary
provisions agreed to by the Company relating to indemnification and
contribution, and take such other actions in connection therewith as
any holders of Registrable Securities aggregating at least 331/3% in
aggregate principal amount of the Registrable Securities at the time
outstanding shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities; provided, that the
Company and the Issuer Trust shall not be required to enter into any
such agreement more than once with respect to all of the Registrable
Securities and may delay entering into such agreement until the
consummation of any underwritten public offering which the Company
shall have then undertaken;
(xv) whether or not an agreement of the type referred to in
Section (3)(b)(xiv) is entered into and whether or not any portion of
the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
holders of such Registrable Securities and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof in form,
substance and scope as are customarily made by the Company in
connection with an offering of debt securities pursuant to any
appropriate agreement or to a registration statement filed on the form
applicable to the Shelf Registration; (B) obtain an opinion of counsel
to the Company and an opinion of counsel to the Issuer Trust in each
case in customary form and covering such matters, of the type
customarily covered by such an opinion, and in the case of the Company
as customarily given in public offerings of the Company's debt
securities as the managing underwriters, if any, or as any holders of
at least 25% in aggregate principal amount of the Registrable
Securities at the time outstanding may reasonably request, addressed to
such holder or holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the effective
date of such registration statement (and if such registration statement
contemplates an underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto); (C) obtain a "cold comfort"
letter or letters from the independent auditors of the Company
addressed to the selling holders of Registrable Securities, the
placement or sales agent, if any, therefor or the underwriters, if any,
thereof, dated (i) the effective date of such registration statement
and (ii) the effective date of any prospectus supplement to the
prospectus included in such registration statement or post-effective
amendment to such registration statement which includes audited
financial statements as of a date or for a period subsequent to that of
the latest such statements included in such prospectus (and, if such
registration statement contemplates an underwritten offering pursuant
to any prospectus supplement to the prospectus included in such
registration statement or post-effective amendment to such registration
statement which includes unaudited or audited financial statements as
of a date or for a period
- 12 -
subsequent to that of the latest such statements included in such
prospectus, dated the date of the closing under the underwriting
agreement relating thereto), such letter or letters to be in customary
form and covering such matters of the type customarily covered by
letters of such type in public offerings of debt securities of the
Company; (D) deliver such documents and certificates, including
officers' or trustees' certificates, as applicable, as may be
reasonably requested by any holders of at least 25% in aggregate
principal amount of the Registrable Securities at the time outstanding
or the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company
or the Issuer Trust, as applicable; and (E) undertake such obligations
relating to expense reimbursement, indemnification and contribution as
are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities
of any proposal by the Company and/or the Issuer Trust to amend or
waive any provision of this Registration Rights Agreement pursuant to
Section 9(g) and of any amendment or waiver effected pursuant thereto,
each of which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Registrable 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 and the By-Laws of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from time
to time) thereof, whether as a holder of such Registrable 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 by (A) if
such Rules shall so require, permitting a "qualified independent
underwriter" (as defined in such Rules (or any successor thereto)) to
participate in the preparation of the registration statement relating
to such Registrable Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the offering
contemplated by such registration statement is an underwritten offering
or is made through a placement or sales agent, to recommend the yield
of such Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6, 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 Conduct
of the NASD; and
(xviii) make generally available to its security holders as
soon as practicable but in any event not later than eighteen months
after the effective date of such registration statement, an earning
statement of the Company and its subsidiaries
- 13 -
complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company or the Issuer Trust, such
obligation shall be subject to the provision of such information.
(c) In the event that the Company and the Issuer Trust would be
required, pursuant to Section 3(b)(vi)(F), to notify the selling holders of
Registrable Securities, the placement or sales agent, if any, therefor or the
managing underwriters, if any, thereof, the Company and the Issuer Trust shall
promptly prepare and furnish to each such holder, to each placement or sales
agent, if any, and to each such underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission thereunder
and shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. Each holder of Registrable Securities agrees that upon
receipt of any notice from the Company or the Issuer Trust, pursuant to Section
3(b)(vi)(F), such holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the registration statement applicable to such
Registrable Securities until such holder (i) shall have received copies of such
amended or supplemented prospectus and, if so directed by the Company or the
Issuer Trust, such holder shall 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 Registrable Securities at the time of
receipt of such notice or (ii) shall have received notice from the Company or
the Issuer Trust that the disposition of Registrable Securities pursuant to the
Shelf Registration may continue.
(d) The Company and the Issuer Trust may require each holder of
Registrable Securities as to which any registration pursuant to Section 2(b) is
being effected to furnish to the Company such information regarding such holder
and such holder's intended method of distribution of such Registrable Securities
as the Company and the Issuer Trust may from time to time reasonably request in
writing, but only to the extent that such information is required in order to
comply with the Securities Act. Each such holder agrees to notify the Company
and the Issuer Trust as promptly as practicable of any inaccuracy or change in
information previously furnished by such holder to the Company and the Issuer
Trust or of the occurrence of any event in either case as a result of which any
prospectus relating to such registration contains or would contain an untrue
statement of a material fact regarding such holder or such holder's intended
method of disposition of such Registrable Securities or omits to state any
material fact regarding such holder or such holder's intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading, and promptly to furnish
to the Company and the Issuer Trust any additional information required to
correct and update any previously furnished information or required so that such
prospectus shall not contain, with respect to such holder or the disposition of
such Registrable Securities, an untrue statement of a material fact or
- 14 -
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(e) Until the expiration of three years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined in
Rule 144) to, resell any of the Capital Securities or Debentures that have been
reacquired by any of them except pursuant to an effective registration statement
under the Act.
(f) In connection with the Company's and the Issuer Trust's obligations
with respect to the registration of Exchange Securities as contemplated by
Section 2(a) (the "Exchange Registration"), if applicable, the Company and the
Issuer Trust shall, as soon as reasonably practicable (or as otherwise
specified):
(i) prepare and file with the Commission such amendments and
supplements to the Exchange Offer Registration Statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness thereof for the periods and purposes contemplated in
Section 2(a) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of the Exchange Offer Registration Statement, and promptly provide
each broker-dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange
Securities;
(ii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in the Exchange Offer
Registration Statement, and confirm such advice in writing, (A) when
the Exchange Offer Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to the Exchange Offer
Registration Statement or any post-effective amendment, when the same
has become effective, (B) of any comments by the Commission and by the
Blue Sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to the Exchange Offer Registration Statement or prospectus
or for additional information, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Exchange Offer
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations
and warranties of the Company and/or the Issuer Trust contemplated by
Section 5 cease to be true and correct in all material respects, (E) of
the receipt by the Company or the Issuer Trust of any notification with
respect to the suspension of the qualification of the Exchange
Securities for sale in any United States jurisdiction or the initiation
or threatening of any proceeding for such purpose, or (F) at any time
during the Resale Period when a prospectus is required to be delivered
under the Securities Act, that the Exchange Offer
- 15 -
Registration Statement, prospectus, prospectus amendment or supplement
or post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
(iii) in the event that the Company and the Issuer Trust would
be required, pursuant to Section 3(f)(ii)(F), to notify any
broker-dealers holding Exchange Securities, promptly prepare and
furnish to each such holder a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing or notify such broker-dealers that the date of Exchange
Securities pursuant to the Exchange Offer Registration Statement may
continue.
(iv) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of the Exchange Offer
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(v) use its reasonable best efforts to (A) register or qualify
the Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later than
the commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all
other actions as may be reasonably necessary or advisable to enable
each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that
neither the Company nor the Issuer Trust shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(f)(v), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between it and
its stockholders;
(vi) use its reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority,
whether federal, state or local, which may be required to be obtained
by the Company or the Issuer Trust to effect the Exchange Registration,
the Exchange Offer and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
- 16 -
(vii) provide a CUSIP number for all applicable Exchange
Securities, not later than the applicable Effective Time;
(viii) make generally available to its security holders as
soon as practicable but no later than eighteen months after the
effective date of such registration statement, an earning statement of
the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company or the Issuer Trust, such
obligation shall be subject to the provision of such information.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's and the
Issuer Trust's performance of or compliance with this Registration Rights
Agreement, including (a) all Commission and any NASD registration and filing
fees and expenses, (b) all fees and expenses in connection with the
qualification of the Securities or Exchange Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(b)(x) and
Section 3(f)(v) hereof, including reasonable fees and disbursements of one
counsel for the placement or sales agent or underwriters in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, the certificates
representing the Exchange Securities and Securities and all other documents
relating hereto, (d) messenger and delivery expenses, (e) fees and expenses of
the Trustee under the Indenture, the Property Trustee and Debenture Trustee
under the Trust Agreement and the Guarantee Trustee under the Guarantee and of
any escrow agent or custodian, (f) internal expenses (including all salaries and
expenses of the Company's officers and employees performing legal or accounting
duties), (g) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance) and (h) reasonable fees, disbursements and expenses of one
counsel for the holders of Registrable Securities retained in connection with a
Shelf Registration, as selected by the holders of at least a majority in
aggregate principal amount of the Registrable Securities being registered, and
fees, expenses and disbursements of any other persons, including special
experts, retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Registrable Securities
or any placement or sales agent therefor or underwriter thereof, the Company
shall reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions and under-
- 17 -
writing discounts and commissions attributable to the sale of such Registrable
Securities and the fees and disbursements of any counsel or other advisors or
experts retained by such holders (severally or jointly), other than the counsel
and experts specifically referred to above.
5. Representations and Warranties.
Each of the Company and the Issuer Trust represents and warrants to,
and agrees with, each Initial Purchaser and each of the holders from time to
time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c) or Section 3(f) hereof and any
further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as the
case may be, and, in the case of an underwritten offering of Registrable
Securities, at the time of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and at all times subsequent to
the Effective Time when a prospectus would be required to be delivered under the
Securities Act, other than from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(b)(vi)(F) or Section
3(f)(ii)(F) hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(c) or Section 3(f)(iii) hereof,
each such registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(b) or Section
3(f) hereof, as then amended or supplemented, will conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company and the Issuer Trust by a holder of
Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with
- 18 -
information furnished in writing to the Company and the Issuer Trust by a holder
of Registrable Securities expressly for use therein.
(c) The compliance by the Company and the Issuer Trust with all of the
provisions of this Registration Rights Agreement and the consummation of the
transactions herein contemplated will not constitute a breach of or default
under, the corporate charter or by-laws of the Company, or the Trust Agreement
of the Issuer Trust, or any material agreement, indenture or instrument relating
to indebtedness for money borrowed to which the Company or to the best knowledge
of the Company, the Issuer Trust is a party or, to the best knowledge of the
Company, the Issuer Trust, as applicable, any law, order, rule, regulation or
decree of any court or governmental agency or authority located in the United
States having jurisdiction over the Company or any property of the Company or
the Issuer Trust or any property of the Issuer Trust, as applicable; and, to the
best knowledge of the Company and the Issuer Trust, no consent, authorization or
order of, or filing or registration with, any court or governmental agency or
authority is required for the consummation by the Company or the Issuer Trust,
as applicable, of the transactions contemplated by this Agreement, except the
registration under the Securities Act contemplated hereby, qualification of the
Indenture, the Guarantee and the Trust Agreement under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under State securities or blue sky laws.
(d) This Agreement has been duly authorized, executed and delivered by
the Company or the Issuer Trust, as applicable.
6. Indemnification.
(a) Indemnification by the Company and the Issuer Trust. Upon the
registration of the Registrable Securities pursuant to Section 2(a) or 2(b), and
in consideration of the agreements of the Initial Purchasers contained herein,
and as an inducement to the Initial Purchasers to purchase the Capital
Securities, each of the Company and the Issuer Trust shall, and it hereby agrees
jointly and severally to, indemnify and hold harmless each of the holders of
Registrable Securities to be included in such registration, and each person who
participates as a placement or sales agent or as an underwriter in any offering
or sale of such Registrable Securities and each person who controls any such
person against any losses, claims, damages or liabilities, joint or several, to
which such holder, agent or underwriter may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Company or the Issuer Trust to any such
holder, agent or underwriter, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading and each of the Company and the Issuer Trust shall, and
it hereby
- 19 -
agrees jointly and severally to, reimburse each such holder, such agent and such
underwriter for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Issuer Trust
shall not be liable to any such person in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company and the Issuer Trust by holders of
Registrable Securities expressly for use therein. This indemnity agreement will
be in addition to any liability which the Company or the Issuer Trust may
otherwise have.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company and the Issuer Trust may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2(b) and to entering into any underwriting agreement with respect thereto, that
the Company and the Issuer Trust shall have received an undertaking reasonably
satisfactory to it from the holder of such Registrable Securities and from each
underwriter named in any such underwriting agreement, severally and not jointly,
to indemnify and hold harmless the Company and the Issuer Trust, each of the
Company's directors, and each person who controls the Company or the Issuer
Trust within the meaning of either the Securities Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company and the Issuer
Trust, but only with reference to written information furnished to the Company
and the Issuer Trust by or on behalf of such person specifically for use in any
registration statement, or any preliminary or final or summary prospectus
contained therein or any amendment or supplement thereto. This indemnity
agreement will be in addition to any liability which any such person may
otherwise have.
(c) Promptly after receipt by an indemnified party under
Section 6(a) or (b) of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under Section 6(a) or
(b). In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the
- 20 -
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under Section
8(a) or (b) for any legal or other expenses subsequently incurred by such
indemnified party (other than reasonable costs of investigation) in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate national counsel, approved by the indemnifying party,
representing the indemnified parties who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contributions pursuant to this
Section 6(d) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6(d), no holder shall
be required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) exceeds the amount of any damages which such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission, and no underwriter shall be required to contribute any
amount in excess of the amount by which the total
- 21 -
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such 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' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in proportion to
the principal amount of Registrable Securities registered or underwritten, as
the case may be, by them and not joint.
(e) The obligations of the Company and the Issuer Trust under this
Section 6 shall be in addition to any liability which the Company and the Issuer
Trust may otherwise have and shall extend, upon the same terms and conditions,
to each officer, director and partner of each holder, agent and underwriter and
each person, if any, who controls any holder, agent or underwriter within the
meaning of the Securities Act; and the obligations of the holders and any agents
or underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his consent, is named in
any registration statement as about to become a director of the Company), to
each Trustee under the Trust Agreement and to each person, if any, who controls
the Company and the Issuer Trust within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least a majority in aggregate principal amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are acceptable to the
Company.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that the
Company shall use its reasonable best efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of
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the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Company and the Issuer
Trust represents, warrants, covenants and agrees that it has not granted, and
shall not grant, registration rights with respect to Registrable Securities
which would be inconsistent with the terms contained in this Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at U. S. Bancorp, ▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary; if to the Issuer Trust, to it at The First National Bank of Chicago,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇- 0126, Attention:
Corporate Trust Services Division; and if to a holder, to the address of such
holder set forth in the security register or other records of the Issuer Trust
or the Company, as the case may be, or to such other address as the Company, the
Issuer Trust or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(c) Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and assigns of the parties hereto. In the event that
any transferee of any holder of Regis- trable Securities shall acquire
Registrable Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be deemed a party hereto for all purposes and
such Registrable Securities shall be held subject to all of the terms of this
Registration Rights Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by and to perform, all of the
applicable terms and provisions of this Registration Rights Agreement.
(d) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Registration Rights
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to
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the results thereof) made by or on behalf of any holder of Registrable
Securities, any director, officer or partner of such holder, any agent or
underwriter or any director, officer or partner thereof, or any controlling
person of any of the foregoing, and shall survive delivery of and payment for
the Registrable Securities pursuant to the Purchase Agreement and the transfer
and registration of Registrable Securities by such holder and the consummation
of an Exchange Offer.
(E) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other writings
referred to herein (including the Trust Agreement, the Guarantee and the
Indenture) or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter. This Registration Rights Agreement may be
amended and the observance of any term of this Registration Rights Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only by a written instrument duly executed by the Company, the
Issuer Trust and the holders of at least a majority in aggregate principal
amount of the Registrable Securities at the time outstanding. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any amendment or waiver effected pursuant to this Section 9(g), whether or not
any notice, writing or marking indicating such amendment or waiver appears on
such Registrable Securities or is delivered to such holder.
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(h) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities for proper purposes only
(which shall include any purpose related to the rights of the holders of
Registrable Securities under the Securities, the Indenture and this Agreement)
at the offices of the Company at the address thereof set forth in Section 9(c)
above, at the office of the Property Trustee or at the office of the Trustee
under the Indenture.
(i) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
Agreed to and accepted as of the date referred to above.
U. S. BANCORP CAPITAL I
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Administrative Trustee
U. S. BANCORP
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President and
Treasurer
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇ BROTHERS INC.
SALOMON BROTHERS INC
By /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
(▇▇▇▇▇▇▇, Sachs & Co.)
on behalf of all Initial Purchasers
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