Exhibit 4.7
REGISTRATION RIGHTS AGREEMENT
Dated January 29, 1997
among
SOUTHERN INVESTMENTS UK plc
SOUTHERN INVESTMENTS UK CAPITAL TRUST I
and
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of January 29, 1997 among SOUTHERN INVESTMENTS UK plc, a
United Kingdom corporation (the "Company"), SOUTHERN INVESTMENTS UK CAPITAL
TRUST I, a statutory business trust formed under the laws of the state of
Delaware (the "Trust"), and ▇▇▇▇▇▇ BROTHERS INC. ("▇▇▇▇▇▇ Brothers") and ▇.▇.
▇▇▇▇▇▇ SECURITIES INC. (collectively the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated January 23, 1997 (the "Purchase Agreement"), among the Company, as issuer
of the 8.23% Subordinated Debentures due February 1, 2027 (the "Subordinated
Debentures"), the Trust and the Initial Purchasers, which provides for among
other things, the sale by the Trust to the Initial Purchasers of $82,000,000 of
the Trust's 8.23% Subordinated Capital Income 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 Company's
guarantee of the Capital Securities (the "Capital Securities Guarantee") are
collectively referred to as the "Securities". In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company and the Trust have
agreed to provide to the Initial Purchasers 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 Distribution" shall have the meaning set forth in
Section 2(e) hereof.
"Additional Interest" 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.
"Applicable Period" shall have the meaning set forth in Section
3(t) hereof.
"Business Day" shall mean a day other than (i) a Saturday or a
Sunday, (ii) a day on which banks in New York, New York or Bristol,
England are authorized or obligated by law or executive order to remain
closed or (iii) a day on which the Indenture Trustee's Corporate Trust
Office or Institutional Trustee's principal corporate trust office is
closed for business.
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble to
this Agreement and also includes the Company's successors and permitted
assigns.
"Declaration" or "Declaration of Trust" shall mean the Amended
and Restated Declaration of Trust, dated as of January 29, 1997, by the
trustees named therein and the Company as sponsor.
"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 Company 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 8.23% Subordinated Debentures due February
1, 2027 (the "Exchange Debentures") containing terms identical to the
Subordinated Debentures (except that they will not contain terms with
respect to the transfer restrictions under the Securities Act, will not
require transfers thereof to be in minimum blocks of $100,000 principal
amount and will not provide for any increase in the interest rate
thereon), (ii) with respect to the Capital Securities, the Trust's
8.23% Subordinated Capital Income Securities, liquidation amount $1,000
per Capital Security (the "Exchange Capital Securities") which will
have terms identical to the Capital Securities (except that they will
not contain terms with respect to transfer restrictions under the
Securities Act, will not require transfers thereof to be in minimum
blocks of $100,000 principal amount and will not provide for any
increase in the distribution rate thereon) and (iii) with respect to
the Capital Securities Guarantee, the Company's guarantee (the
"Exchange Capital Securities Guarantee") of the Exchange Capital
Securities which will have terms identical to the Capital Securities
Guarantee.
"Holder" shall mean the Initial Purchasers, for so long as
they own 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 January
29, 1997 among the Company, as issuer, Bankers Trust Company, as the
Indenture Trustee and Bankers Trust ▇▇▇▇▇▇▇▇▇ ▇.▇., as paying and
transfer agent, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n)
hereof.
"Issue Date" shall mean the date of original issuance of the
Securities.
"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.
"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-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.
"Registration Default" shall have the meaning set forth in
Section 2(e) hereof.
"Registrable Securities" shall mean the Securities; provided,
however, that Securities, shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Securities for the
exchange thereof, shall have been declared effective under the
Securities Act and such Securities shall have been disposed of pursuant
to such Registration Statement, (ii) such Securities, 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, (iii) such
Securities shall have ceased to be outstanding or (iv) such Securities
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 Company).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC or National
Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including reasonable
fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities) and compliance with the rules of
the NASD in the amount not exceeding $15,000 in the aggregate, (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
Registration Statement, any Prospectus and any amendments or
supplements thereto, and in preparing or assisting in preparing,
printing and distributing any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) the
fees and disbursements of counsel for the Company and of the
independent certified public accountants of the Company, including the
expenses of any "cold comfort" letters required by or incident to such
performance and compliance, (vi) the fees and expenses of the Trustees,
and any exchange agent or custodian, (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, and
(viii) the reasonable fees and expenses of any special experts retained
by the Company in connection with any Registration Statement.
"Registration Statement" shall mean any registration statement
of the Company 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 three years (or
such shorter period as may hereafter be provided 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 Company and the Trust pursuant to the
provisions of Section 2(b) hereof which covers all of the Registrable
Securities, 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(1) 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.
2. Registration Under the Securities Act.
(a) Exchange Offer. To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, the Company and the Trust
shall, for the benefit of the Holders, at the Company's cost, use its 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 covering 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 Company 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 is not an affiliate of the Company within the meaning
of Rule 405 under the Securities Act and is not a broker-dealer tendering
Registrable Securities acquired directly from the Company for its own account,
acquires the Exchange Securities in the ordinary course of such Holder's
business and has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of distributing the Exchange
Securities) to transfer such Exchange Securities from and after their receipt
without any limitations or restrictions under the Securities Act and under state
securities or blue sky laws.
In connection with the Exchange Offer, the Company and the
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;
(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 Purchasers and Participating Broker-Dealers as provided
herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Company and the Trust, as the case requires, shall:
(vii) accept for exchange all Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer;
(viii) deliver, or cause to be delivered, to the applicable
Trustee for cancellation all Securities or portions thereof so
accepted for exchange by the Company; and
(ix) 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 Exchange Securities equal
in principal amount to the principal amount of the Subordinated
Debentures or equal in liquidation amount of the liquidation amount to
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 issued pursuant to the Registered Exchange Offer 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 Company 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 Company, (ii) the Exchange Securities to be received by it were acquired
in the ordinary course of its business and (iii) at the time of the Exchange
Offer, it has no arrangement with any person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Capital Securities.
Each Holder hereby acknowledges and agrees that any Participating Broker-Dealer
and any such Holder using the Exchange Offer to participate in a distribution of
the securities to be acquired in the Exchange Offer (1) could not under SEC
policy as in effect on the date of this Agreement rely on the position of the
SEC enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in
the SEC's letter to Shearman & Sterling dated July 2, 1993, and similar
no-action letters (including any no-action letter obtained pursuant to clause
(i) above, and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K if the
resales are of Exchange Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Trust or the Company.
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
Exchange Securities held by Participating Broker-Dealers, and the Company and
the Trust shall have no further obligation to register the Registrable
Securities (other than pursuant to Section 2(b)(iii)) pursuant to Section 2(b)
of this Agreement.
(c) Shelf Registration. In the event that (i) the Company and the Trust are
not permitted to effect the Exchange Offer because of any change in law or in
currently prevailing interpretations of the staff of the SEC, (ii) the Exchange
Offer Registration Statement is not declared effective within 180 days of the
Issue Date, (iii) upon the request of any Initial Purchaser with respect to any
Registrable Securities held by it, if such Initial Purchaser is not permitted,
in the reasonable opinion of Shearman & Sterling, 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 or (iv) if the Company has received an opinion of counsel 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 Trust could be subject to US federal or UK income tax with respect
to income received or accrued on the Subordinated Debentures or Exchange
Debentures, (B) interest payable by the Company on such Subordinated Debentures
or Exchange Debentures would not be deductible by the Company, in whole or in
part, for US earnings and profits purposes or UK income tax purposes, or (C) the
Trust could be subject to more than a de minimis amount of other taxes, duties
or other governmental charges, or in certain other circumstances (any of the
events specified in (i) - (iv) being a "Shelf Registration Event" and the date
of occurrence thereof, the "Shelf Registration Event Date"), the Company and the
Trust shall promptly deliver to the holders and the Institutional Trustee
written notice thereof and, at their cost, 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, and shall use its reasonable best
efforts to have such Shelf Registration Statement declared effective by the SEC
as soon as practicable; provided, however that if the Shelf Registration Event
is pursuant to clause (iii) the Company may register such Registrable Securities
together with the Exchange Offer Registration Statement, filed pursuant to
Section 2(a), and the requirements as to timing applicable thereto. No Holder of
Registrable Securities shall be entitled to include any of its Registrable
Securities in any Shelf Registration pursuant to this Agreement unless and until
such Holder agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder and furnishes to the Company and the Trust
in writing, within 15 days after receipt of a request therefor, such information
as the Company 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
promptly to furnish to the Company and the Trust all information with respect to
such Holder necessary to make the information previously furnished to the
Company by such Holder not materially misleading.
The Company and the Trust agree to use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective for the
Rule 144(k) Period (subject to extension pursuant to the last paragraph of
Section 3 hereof) or for such shorter period which will terminate when all of
the Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be outstanding
(the "Effectiveness Period"). The Company and the Trust shall not permit any
securities other than Registrable Securities to be included in the Shelf
Registration. The Company 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,
notify each such Holder when the Shelf Registration has become effective. The
Company 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 Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company and the 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.
(d) Expenses. The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) or 2(b) hereof. Except as
provided herein, each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(e) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof (or a combination of the two) 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 Registerable Securities pursuant to a 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 Company 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 take any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable
Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless such action is required by
applicable law.
(f) Additional Interest and Distributions. In the event that
(i) (A) neither the Exchange Offer Registration Statement nor
a Shelf Registration Statement is filed with the SEC on or prior to the
150th day after the Issue Date or (B) notwithstanding that the Company
and the Trust have consummated or will consummate an Exchange Offer,
the Company and the Trust are required to file a Shelf Registration
Statement and such Shelf Registration Statement is not filed on or
prior to the date required by Section 2(b) hereof, then commencing on
the day after the applicable required filing date, additional interest
shall accrue on the principal amount of the Subordinated Debentures
("Additional Interest"), and additional distributions shall accumulate
on the liquidation amount of the Capital Securities ("Additional
Distributions"), each at a rate of 0.25% per annum; or
(ii) (A) neither the Exchange Offer Registration Statement nor
a Shelf Registration Statement is declared effective by the SEC on or
prior to the 30th day after the applicable required filing date or (B)
notwithstanding that the Company and the Trust have consummated an
Exchange Offer, the Company and the Trust are required to file a Shelf
Registration Statement and such Shelf Registration Statement is not
declared effective by the SEC on or prior to the 30th day after the
date such Shelf Registration Statement was required to be filed, then,
commencing on the 31st day after the applicable required filing date,
Additional Interest shall accrue on the principal amount of the
Subordinated Debentures, and Additional Distributions shall accumulate
on the liquidation amount of the Capital Securities, each at a rate of
0.25% per annum; or
(iii) (A) the Trust has not exchanged Exchange Capital
Securities for all Capital Securities or the Company has not exchanged
the Exchange Guarantees or Exchange Subordinated Debentures for the
Guarantees or all Subordinated Debentures validly tendered, in
accordance with the terms of the Exchange Offer on or prior to the 40th
day after the date on which the Exchange Offer Registration Statement
was declared effective or (B) if applicable, the Shelf Registration
Statement has been declared effective and such Shelf Registration
Statement ceases to be effective at any time prior to the expiration of
the Rule 144(k) Period (other than after such time as all Capital
Securities have been disposed of thereunder or otherwise cease to be
Registrable Securities), then Additional Interest shall accrue on the
principal amount of Subordinated Debentures, and Additional
Distributions shall accumulate on the liquidation amount of the Capital
Securities, each at a rate of 0.25% per annum commencing on (x) the
41st day after such effective date, in the case of (A) above, or (y)
the day such Shelf Registration Statement ceases to be effective in the
case of (B) above;
provided, however, that neither the Additional Interest rate on the Subordinated
Debentures, nor the Additional Distribution rate on the liquidation amount of
the Capital Securities, may exceed in the aggregate 0.25% per annum; provided
further, however, that (1) upon the filing of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of clause (i) above),
(2) upon the effectiveness of the Exchange Offer Registration Statement or a
Shelf Registration Statement (in the case of clause (ii) above), (3) upon the
exchange of Exchange Capital Securities, Exchange Guarantee and Exchange
Subordinated Debentures for all Capital Securities, the Guarantee and all
Subordinated Debentures tendered (in the case of clause (iii)(A) above), or upon
the effectiveness of the Shelf Registration Statement which had ceased to remain
effective (in the case of clause (iii)(B) above), or (4) upon the expiration of
three years (or such shorter period as may hereafter be provided in Rule 144K
under the Securities Act (or similar rule)) commencing on the date of original
issuance of the Securities, Additional Interest on the Subordinated Debentures,
and Additional Distributions on the liquidation amount of the Capital Securities
as a result of such clause (or the relevant subclause thereof), as the case may
be, shall cease to accrue or accumulate, as the case may be.
Any amounts of Additional Interest and Additional
Distributions due pursuant to Section 2(e) (i), (ii) or (iii) above will be
payable in cash on the relevant payment dates for the payment of interest and
Distributions pursuant to the Indenture and the Declaration, respectively.
(g) Specific Enforcement. Without limiting the remedies available to the
Holders, the Company and the Trust acknowledge that any failure by the Company
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
Company's and the Trust's obligations under Section 2(a) and Section 2(b)
hereof.
3. Registration Procedures. In connection with the obligations of the
Company and the Trust with respect to the Registration Statements pursuant to
Sections 2(a) and 2(b) hereof, the Company and the Trust shall use their best
reasonable efforts to:
(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(s) under the Securities Act, which
form(s) (i) shall be selected by the Company 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 (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 reasonable best efforts to cause
such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof; provided, however, that if (1) such
filing is pursuant to Section 2(b), or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company and the 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 Company 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
Company 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 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; (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; (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; and (iv) furnish to each Holder of
Registrable Securities either a summary of the terms of this Agreement
or a copy of this Agreement.
(d) in the case of a Shelf Registration, cooperate
with the Trustee 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; provided,
however, that the Company 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) file annual reports or comply with any
other requirements deemed by the Company to be unduly burdensome;
(e) in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers from whom the Company 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, notify each Holder
of Registrable Securities, or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters, if any,
promptly and promptly confirm such notice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any
request by the 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 Exchange
Securities to he 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 Company and the
Trust contained in any purchase agreement, securities sales agreement
or other similar agreement, if any cease to be true and correct in all
material respects, and (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 Company 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, at least one
conformed copy of each Registration Statement relating to such Shelf
Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive
legends and in such denominations (consistent with the provisions of
the Indenture and the 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, prepare a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occurrence of such
an event, and each Holder hereby agrees to suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus
to correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable
time prior to the filing of any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after the
initial filing of a Registration Statement, provide a reasonable number
of copies of such document to the Holders; and make such of the
representatives of the Company and the Trust as shall he reasonably
requested by the Holders of Registrable Securities or the Initial
Purchasers on behalf of such Holders available for reasonable
discussion of such document;
(k) 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
Subordinated Debentures), as the case may be, not later than the
effective date of a Registration Statement, and provide the relevant
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;
(l) 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 reasonable 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;
(m) in the case of a Shelf Registration, enter into
such agreements (including underwriting agreements) as are customary in
underwritten offerings and consistent with the terms of the Purchase
Agreement and take all such other appropriate actions as are reasonably
requested in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection,
whether or not an underwriting agreement is entered into and whether or
not the registration is an underwritten registration, if requested by
(x) any Initial Purchaser, in the case where an Initial Purchaser holds
Securities acquired by it as part of its initial distribution and (y)
other Holders of Securities covered thereby: (i) make such
representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business
of the Trust, the Company 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 to underwriters in
underwritten offerings, and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company and the Trust and
updates thereof (which may be in the form of a reliance letter) in form
and substance reasonably satisfactory to the managing underwriters (if
any) and the Holders of a majority in principal amount of the
Registrable Securities being sold, addressed to each selling Holder and
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 Company and the Trust (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company and the
Trust or of any business acquired by the Company 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 of Registrable Securities
covered by such Registration Statement and the managing underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section (including, without limitation, such underwriters and selling
Holders). The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder and
as consistent with the terms of the Purchase Agreement;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
make reasonably available for inspection by any selling Holder of such
Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any
such disposition of Registrable Securities, 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 reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Trust, the Company
and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Trust, the Company and its subsidiaries to supply all
relevant information in each case reasonably requested by any such
Inspector in connection with such Registration Statement provided,
however, that the foregoing inspection and information gathering shall
be coordinated on behalf of the Purchasers by you and on behalf of the
other parties, by one counsel designated by you and on behalf of such
other parties as described in Section 2(c) hereof. Records which the
Company 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) the release of such
Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or is necessary in connection with any
action, suit or proceeding or (iii) the information in such Records has
been made generally available to the public. Each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer
will be required to agree in writing that information obtained by it as
a result of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the
securities of the Trust or the Company unless and until such is made
generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will
he required to further agree in writing that it will, upon learning
that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company at its
expense to undertake appropriate action to prevent disclosure of the
Records deemed confidential;
(o) comply with all applicable rules and regulations
of the SEC so long as any provision of this Agreement shall be
applicable and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods;
(p) upon consummation of an Exchange Offer, if
requested by a Trustee, obtain an opinion of counsel to the Company
addressed to the relevant Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer and which
includes an opinion that (i) the Company and the Trust, as the case
requires, has duly authorized, executed and delivered the Exchange
Securities, and (ii) each of the Exchange Securities constitutes a
legal, valid and binding obligation of the Company or the Trust, as the
case requires, enforceable against the Company or the Trust, as the
case requires, in accordance with its respective terms (in each case,
with customary exceptions);
(q) if an Exchange Offer is to be consummated, upon
delivery of the Registrable Securities by Holders to the Company or the
trust, as applicable (or to such other Person as directed by the
Company or the Trust, respectively), in exchange for the Exchange
Securities, the Company 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 in no event shall such Registrable
Securities be marked as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable
Securities covered by any Registration Statement and each underwriter,
if any, participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to
be made with the NASD;
(s) use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer
Registration Statement (i) indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer
Registration Statement that any broker or dealer registered under the
Exchange Act who holds Securities that are Registrable Securities and
that were acquired for its own account as a result of market-making
activities or other trading activities (other than Registrable
Securities acquired directly from the Company and the Trust) (such
broker or dealer, a "Participating Broker-Dealer"), may exchange such
Securities pursuant to the Exchange Offer; however, such Participating
Broker-Dealer may be deemed to be an "underwriter" within the meaning
of the Securities Act and must, therefore, deliver a prospectus meeting
the requirements of the Securities Act in connection with any resales
of the Exchange Securities received by such Participating Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be
satisfied by the delivery by such Participating Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such
"Plan of Distribution" section shall also contain all other information
with respect to such resales by Participating Broker-Dealers that the
Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such
Participating Broker-Dealer or disclose the amount of Exchange
Securities held by any such Participating Broker-Dealer except to the
extent required by the Commission as a result of a change in policy
announced after the date of this Agreement, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company the notice
referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such Participating Broker-Dealer may reasonably request
(each of the Company and the Trust hereby consents to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or
any amendment or supplement thereto by any Person subject to the
prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer
of the Exchange Securities covered by the Prospectus or any amendment
of 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 acknowledgement 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 Company and the Trust agree to deliver to the Initial
Purchasers or to another representative of the Participating
Broker-Dealers, if requested by any such Initial Purchasers or such
other representative of the Participating Broker-Dealers, on behalf of
the Participating Broker-Dealers upon consummation of the Exchange
Offer (i) an opinion of counsel in form and substance reasonably
satisfactory to the Initial Purchasers 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(d) 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. Each of the foregoing shall be consistent
with the terms of the Purchase Agreement.
The Company or the Trust may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company or the
Trust, as applicable, such information regarding such seller as may be required
by the staff of the SEC to be included in a Registration Statement. The Company
or the Trust may exclude from such registration the Registrable Securities of
any seller who unreasonably fails to furnish such information within a
reasonable time after receiving such request. The Company 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 (1) a Shelf Registration Statement or (2) Participating
Broker-Dealers who have notified the Company 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 Company 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 Company and the Trust that the
use of the applicable Prospectus may be resumed, and, if so directed by the
Company and the Trust, such Holder will deliver to the Company or the Trust (at
the Company'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 Company 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 Company and the Trust shall use
their best efforts to file and have declared effective (if an amendment) as soon
as practicable an amendment or supplement to the Registration Statement and
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the Company and the 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.
(a) In connection with any Registration Statement, the Company
and the Trust shall, jointly and severally, indemnify and hold harmless each
Initial Purchaser, each Holder, each underwriter who participates in an offering
of the Registrable Securities, each Participating Broker-Dealer, and 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 (each an "Indemnified
Party") as follows:
(i) from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act or otherwise, and to
reimburse the Indemnified Party for any legal or other expenses
incurred by them in connection with defending any actions, insofar as
such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus or the Prospectus as amended
or supplemented, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any such untrue statement or omission or
alleged untrue statement or omission which was made in such Prospectus,
or the Prospectus as amended or supplemented, in reliance upon and in
conformity with information furnished in writing to the Company by such
Indemnified Party for use therein and except that this indemnity with
respect to the Prospectus if the Company shall have furnished any
amendment or supplement thereto, shall not inure to the benefit of any
Indemnified Party on account of any losses, claims, damages,
liabilities or actions arising from the sale of Registrable Securities
to any person if a copy of the Prospectus, as the same may then be
amended or supplemented, shall not have been sent or given by or on
behalf of such Indemnified Party to such person with or prior to the
written confirmation of the sale involved. Each Indemnified Party shall
agree, that within ten days after the receipt by it of notice of the
commencement of any action in respect of which indemnity may be sought
by it, or by any person controlling it, from the Company on account of
its agreement contained in this Section 4, to notify the Company in
writing of the commencement thereof, but the omission of such
Indemnified Party so to notify the Company of any such action shall not
release the Company from any liability which it may have to such
Indemnified Party or to such controlling person otherwise than on
account of the indemnity agreement contained in this Section 4. In case
any such action shall be brought against any Indemnified Party or any
such person controlling such Indemnified Party shall notify the Company
of the commencement thereof, as above provided, the Company shall be
entitled to participate in (and, to the extent that it shall wish,
including the selection of counsel, to direct) the defense thereof at
its own expense. In case the Company elects to direct such defense and
select such counsel, any Indemnified Party or controlling person shall
have the right to employ its own counsel, but, in any such case, the
fees and expenses of such counsel shall be at the expense of such
Indemnified Party or controlling person unless the employment of such
counsel has been authorized in writing by the Company in connection
with defending such action.
The Company's indemnity agreement contained in this Section 4, shall remain
in full force and effect regardless of any investigation made by or on behalf of
any Indemnified Party or controlling person, and shall survive the registration
of the Registrable Securities.
(c) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Trust, any underwriter and the other selling Holders
and each of their respective directors, officers (including each officer of the
Company and the Trust who signed the Registration Statement), employees and
agents and each Person, if any, who controls the Company, 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 the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company or the Trust by such selling Holder with
respect to such Holder expressly for use in the Registration Statement (or any
amendment thereto), or any such Prospectus (or any amendment or supplement
thereto); provided, however, that, in the case of 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.
(d) The Company shall give notice to each Indemnifying Party of any action
commenced against it in respect of which indemnity may be sought hereunder in
accordance with the terms of, and have the same effect as in Section 4(a).
5. Participation in Underwritten Registrations. No Holder may participate
in any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities covered
by the Shelf Registration Statement who desire to do so may sell the securities
covered by such Shelf Registration in an underwritten offering. In any such
underwritten offering, the underwriter or underwriters and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company and the Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company or the Trust is
subject to the reporting requirements of Section 13 or 15 of the Exchange Act
and any Registrable Securities remain outstanding, the Company and the Trust, as
the case may be, will their its reasonable best efforts to file the reports
required to be filed by it under the Securities Act and Section 13(a) or 15(d)
of the Exchange Act and the rules and regulations adopted by the SEC thereunder,
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 their securities pursuant to Rule
144 under the Securities Act, (b) deliver such information to prospective
purchaser as is necessary to permit sales of their securities pursuant to Rule
144A under the Securities Act and it will take such further action as any Holder
of Registrable Securities may reasonably request, and (c) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
rule may be amended from time to time, (ii) Rule 144A under the Securities Act,
as such rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company and the Trusts will deliver to such Holder a
written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company or the Trust has not entered
into nor will the Company 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 Company'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 Company and the Trust have obtained the written consent of Holders of
at least a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure; provided no departure with respect to the provisions of Section 4
hereof shall be effective as against any Holder of Registrable Securities.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder of Registrable Securities, by written
agreement signed by the Company, the Trust and ▇▇▇▇▇▇ Brothers, to cure any
ambiguity, correct or supplement any provision of this Agreement that may be
inconsistent with any other provision of this Agreement or to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with other provisions of this Agreement, (ii)
this Agreement may be amended, modified or supplemented, and waivers and
consents to departures from the provisions hereof may be given, by written
agreement signed by the Company, the Trust and ▇▇▇▇▇▇ Brothers 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
Purchasers, 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 ▇▇▇▇▇▇ Brothers, the Company 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 Company 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
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company or the Trust, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of the Initial
Purchasers, 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. Each of the Initial Purchasers shall be a
third party beneficiary of the agreements made hereunder between the Company 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 ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company, the Trust or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company,
the Trust or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SOUTHERN INVESTMENTS UK PLC
By:
Name:
Title:
SOUTHERN INVESTMENTS UK CAPITAL TRUST I
By:
Name:
Title:
Confirmed and accepted as of
the date first above
written:
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: ▇▇▇▇▇▇ BROTHERS INC.
as Representative of the
Several Initial Purchasers