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REGISTRATION RIGHTS AGREEMENT
Dated as of February 25, 2000
by and among
CASCADE FINANCIAL CORPORATION,
CASCADE CAPITAL TRUST I
and
SANDLER ▇'▇▇▇▇▇ & PARTNERS, L.P.,
on behalf of the several Initial Purchasers
named in Schedule A of the Purchase Agreement
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of February 25, 2000 by and among CASCADE FINANCIAL CORPORATION, a
Delaware corporation (the "Company"), CASCADE CAPITAL TRUST I, a business trust
formed under the laws of the state of Delaware (the "Trust"), SANDLER ▇'▇▇▇▇▇ &
PARTNERS, L.P., as representative of the initial purchasers named in Schedule A
of the Purchase Agreement (the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated February 25, 2000 (the "Purchase Agreement"), by and among the Company, as
issuer of the 11.00% Junior Subordinated Deferrable Interest Debentures due
March 1, 2030, Series A (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 10,000 of the Trust's 11.00% Capital
Securities, Series A, liquidation amount $1,000 per Capital Security (the
"Capital Securities"), the proceeds of which will be used by the Trust, together
with the proceeds from the sale of the Trust's Common Securities to the Company,
to purchase the Subordinated Debentures. The Capital Securities, together with
the Subordinated Debentures and the Company's guarantee agreement in respect 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 its direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"Additional Distributions" shall have the meaning set forth in Section 2(e)
hereof.
"Advice" shall have the meaning set forth in the last paragraph of Section
3 hereof.
"Affiliate" shall have the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u)
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday, or a day
on which banking institutions in Everett, Washington, New York, New York or
Wilmington, Delaware are authorized or required by law or executive order to
remain closed.
"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.
1
"Debentures" shall collectively mean the Subordinated Debentures and the
Exchange Debentures.
"Declaration" or "Declaration of Trust" shall mean the Amended and Restated
Declaration of Trust of Cascade Capital Trust I, dated as of the Closing Time,
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 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 SEC 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 documents 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 11.00% Junior Subordinated Deferrable Interest Debentures due
March 1, 2030, Series B (the "Exchange Debentures") containing terms
substantially identical to the Subordinated Debentures (except that they will
not contain terms with respect to the transfer restrictions under the Securities
Act (other than requiring minimum transfers thereof to be in blocks of $100,000
aggregate principal amount and multiples of $1,000 in excess thereof) and will
not provide for any Liquidated Damages thereon), (ii) with respect to the
Capital Securities, the Trust's 11.00% Capital Securities, Series B, liquidation
amount $1,000 per Capital Security (the "Exchange Capital Securities")
containing terms substantially identical to the Capital Securities (except they
will not contain terms with respect to transfer restrictions under the
Securities Act (other than requiring minimum transfers thereof to be in blocks
of $100,000 aggregate liquidation amount and multiples of $1,000 in excess
thereof) and will not provide for any increase in Additional Distributions
thereon) and (iii) with respect to the Capital Securities Guarantee, the
Company's guarantee agreement in respect of the Exchange Capital Securities (the
"Exchange Capital Securities Guarantee") containing terms substantially
identical to the Capital Securities Guarantee.
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"Holder" shall mean the Initial Purchasers, for so long as it owns any
Registrable Securities, and each of its 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 the Closing Time, between
the Company, as issuer, and Wilmington Trust Company, as trustee, 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(o) hereof.
"Issue Date" shall mean March 1, 2000, the date of original issuance of the
Securities.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a) hereof.
"Private Exchange Securities" shall have the meaning set forth in Section
2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all documents 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(o) hereof.
3
"Registrable Securities" shall mean the Securities and, if issued, the
Private Exchange Securities; provided, however, that Securities or Private
Exchange Securities, as the case may be, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities or
Private Exchange Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act and such
Securities or Private Exchange Securities, as the case may be, shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities or
Private Exchange Securities, as the case may be, shall have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k), (iii) such Securities or Private
Exchange Securities, as the case may be, shall have ceased to be outstanding or
(iv) with respect to the Securities, such Securities shall have been exchanged
for Exchange Securities upon consummation of the Exchange Offer and are
thereafter freely tradeable by the holder thereof (other than an Affiliate of
the 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, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel for all
underwriters or Holders as a group in connection with blue sky qualification of
any of the Exchange Securities or Registrable Securities) and compliance with
the rules of the NASD, (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) the fees and disbursements of counsel for the Company
and of the independent certified public accountants of the Company, including
the expenses of any "cold comfort" letters required by or incident to the
performance of and compliance with this Agreement, (vi) the reasonable fees and
expenses of the Trustees and their counsel and any exchange agent or custodian,
and (vii) 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 documents incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
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"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 or all of the Private Exchange
Securities, as the case may be, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time to
time.
"Trustees" shall mean any and all trustees under the Declaration, the
Indenture, the Capital Securities Guarantee or the Exchange Capital Securities
Guarantee.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the
Company and the Trust shall, for the benefit of the Holders, at
the Company's cost, use their best efforts to (i) cause to be
filed with the SEC within 150 days after the Issue Date an
Exchange Offer Registration Statement on an appropriate form
under the Securities Act relating to the Exchange Offer, (ii)
cause such Exchange Offer Registration Statement to be declared
effective under the Securities Act by the SEC not later than the
date which is 180 days after the Issue Date, and (iii) keep such
Exchange Offer Registration Statement effective for not less than
30 calendar days (or longer if required by applicable law) after
the date notice of the Exchange Offer is mailed to the Holders.
Promptly after the effectiveness of the Exchange Offer
Registration Statement, the Company and the Trust shall 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 Capital Securities
Guarantee, as applicable (provided that such Holder (w) is not an
Affiliate of the Trust or the Company, (x) is not a broker-dealer
tendering Registrable Securities acquired directly from the Trust
or the Company, (y) acquires the Exchange Securities in the
ordinary course of such Holder's business and (z) has no
arrangements or understandings with any Person to participate in
the Exchange Offer for the purpose of distributing the Exchange
Securities), to transfer such Exchange Securities from and after
their receipt without any limitations or restrictions under the
Securities Act and under state securities or blue sky laws (other
than requiring minimum transfers in blocks having an aggregate
principal or liquidation amount, as the case may be, of $100,000
and multiples of $1,000 in excess thereof).
5
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 with respect to Capital Securities represented by a
global certificate;
(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 to Holders, a telegram,
telex, facsimile transmission or letter setting forth the
name of such Holder, the 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.
If either Initial Purchaser determines upon advice of its outside counsel
that it is not eligible to participate in the Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment in the
initial placement, as soon as practicable upon receipt by the Company and the
Trust of a written request from such Initial Purchaser, the Company and the
Trust, as applicable, shall issue and deliver to such Initial Purchaser in
exchange (the "Private Exchange") for the Securities held by such Initial
Purchaser a like liquidation amount of Exchange Capital Securities of the Trust
or, in the event the Trust is liquidated and Subordinated Debentures are
distributed, a like principal amount of the Exchange Debentures of the Company,
together with the Exchange Capital Securities Guarantee, in each case that are
identical (except that such securities may bear a customary legend with respect
to restrictions on transfer pursuant to the Securities Act) to the Exchange
Securities (the "Private Exchange Securities") and which are issued pursuant to
the Indenture or the Declaration (which provides that the Exchange Securities
will not be subject to the transfer restrictions set forth in the Indenture or
the Declaration, as applicable (other than requiring minimum transfers in blocks
having an aggregate principal or liquidation amount, as the case may be, of
$100,000 and multiples of $1,000 in excess thereof), and that the Exchange
Securities, the Private Exchange Securities and the Securities will vote and
consent together on all matters as one class and that none of the Exchange
Securities, the Private Exchange Securities or the Securities will have the
right to vote or consent as a separate class on any matter). The Private
Exchange Securities shall be of the same series as the Exchange Securities, and
the Company and the Trust will seek to cause the CUSIP Service Bureau to issue
the same CUSIP numbers for the Private Exchange Securities as for the Exchange
Securities issued pursuant to the Exchange Offer.
6
As soon as practicable after the close of the Exchange Offer and, if
applicable, the Private Exchange, the Company and the Trust, as the case
requires, shall:
(i) accept for exchange all Securities or portions thereof tendered and
not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(ii) deliver, or cause to be delivered, to the applicable Trustee for
cancellation all Securities or portions thereof so accepted for
exchange by the Company and the Trust; and
(iii)issue, and cause the applicable Trustee under the Indenture or the
Declaration, as applicable, to promptly authenticate and deliver to
each Holder, new Exchange Securities or Private Exchange Securities,
as applicable, equal in principal amount to the principal amount of
the Subordinated Debentures or equal in liquidation amount to the
liquidation amount of the Capital Securities as are surrendered by
such Holder, and will execute, and cause the applicable Trustee to
execute, the Exchange Capital Securities Guarantee.
Distributions on each Exchange Capital Security and interest or
distributions on each Exchange Debenture and Private Exchange Security issued
pursuant to the Exchange Offer and in the Private Exchange will accumulate or
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 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 the
conditions referred to in Section 2(b)(i) and (ii) below and those conditions
that are customary in similar exchange offers. 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) it is not a broker-dealer tendering Registrable Securities
acquired directly from the Trust or Company, (iii) the Exchange Securities to be
received by it were acquired in the ordinary course of its business and (iv) at
the time of the Exchange Offer, it has no arrangements or understandings with
any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Capital Securities. The Company and the Trust
shall inform the Initial Purchasers, after consultation with the applicable
Trustees, of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchasers shall have the right to contact such Holders
in order to facilitate the tender of Registrable Securities in the Ex change
Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company and the Trust shall have no further obligation
to register the Registrable Securities (other than Private Exchange Securities)
held by any Holder pursuant to Section 2(b) of this Agreement.
7
(b) Shelf Registration. In the event that (i) the Company or the Trust
reasonably determine, after conferring with counsel (which may be
in-house counsel), that the Exchange Offer Registration provided in
Section 2(a) above is not available under applicable law and
regulations and currently prevailing interpretations of the staff of
the SEC, (ii) the Company shall determine in good faith that there is
a reasonable likelihood that, or a material uncertainty exists as to
whether, consummation of the Exchange Offer would result in (x) the
Trust becoming subject to federal income tax with respect to income
received or accrued on the Debentures, (y) the interest payable by the
Company on the Debentures not being deductible by the Company for
United States federal income tax purposes or (z) the Trust becoming
subject to more than a de minimis amount of other taxes, duties or
governmental charges, (iii) the Exchange Offer Registration Statement
is not declared effective within 180 days of the Issue Date or (iv)
upon the request of either Initial Purchaser with respect to any
Registrable Securities held by it, if such Initial Purchaser is not
permitted, in the reasonable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇,
pursuant to applicable law or applicable interpretations of the staff
of the SEC, to participate in the Exchange Offer and thereby receive
securities that are freely tradeable without restriction under the
Securities Act and applicable blue sky or state securities laws (any
of the events specified in (i), (ii), (iii) or (iv) being a "Shelf
Registration Event," and the date of occurrence thereof, the "Shelf
Registration Event Date"), then in addition to or in lieu of
conducting the Exchange Offer contemplated by Section 2(a), as the
case may be, the Company and the Trust shall, at their cost, use their
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
(provided that in no event shall such filing date be required to be
earlier than 75 days after the Issue Date), a Shelf Registration
Statement providing for the sale by the Holders of all of the
Registrable Securities, and shall use their best efforts to have such
Shelf Registration Statement declared effective by the SEC as soon as
practicable. No Holder of Registrable Securities shall be entitled to
include any of its Registrable Securities in any Shelf Registration
pursuant to this Agreement unless and until such Holder 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 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 best efforts to keep the Shelf
Registration Statement continuously effective and usable for resales for (a) the
Rule 144(k) Period in the case of a Shelf Registration Statement filed pursuant
to Section 2(b)(i), (ii) or (iii) or (b) 180 days in the case of a Shelf
Registration Statement filed pursuant to Section 2(b)(iv) (subject in each case
to extension pursuant to the last paragraph of Section 3 hereof), or for such
shorter period which will terminate when all of the Securities covered by the
Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement or cease to be Registrable Securities (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
8
the Shelf Registration has become effective and take certain other actions as
are required to permit certain unrestricted resales of the Registrable
Securities. 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.
(c) Expenses. The Company, as issuer of the Subordinated Debentures, shall
pay all Registration Expenses in connection with any Registration
Statement filed pursuant to Section 2(a) and/or 2(b) hereof and will
reimburse the Initial Purchasers for the reasonable fees and
disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood, counsel for the Initial
Purchasers, incurred in connection with the Exchange Offer and, if
applicable, the Private Exchange, and either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
or any other single counsel designated in writing by the Majority
Holders to act as counsel for the Holders of the Registrable
Securities in connection with a Shelf Registration Statement, which
other counsel shall be reasonably satisfactory to the Company provided
that, in the event of an Exchange Offer, such fees and disbursements
for counsel for the Initial Purchasers shall be limited to $25,000.
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.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have
become effective unless it has been declared effective by the SEC;
provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to such Exchange Offer
Registration Statement or Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Exchange Offer
Registration Statement or Shelf 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 best efforts to cause the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, to become, or to remain, effective
during the requisite period if either of them voluntarily takes any
action that would result in any such Registration Statement not being
declared effective or that would result in the Holders of Registrable
Securities covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period, unless such
action is required by applicable law.
(e) Liquidated Damages and Additional Distributions. In the event that:
(i) neither the Exchange Offer Registration Statement is filed with
the SEC on or prior to the 150th day after the Issue Date nor a
Shelf Registration Statement is filed with the SEC on or prior to
the 45th day after the Shelf Registration Event Date in respect
of a Shelf Registration Event attributable to any of the events
set forth in Sections 2(b)(i), (ii) and (iii) (provided that in
no event shall such filing date be required to be earlier than 75
days after the Issue Date), then commencing on the day after the
applicable required filing date, liquidated damages ("Liquidated
Damages") shall accrue on the principal amount of the
Subordinated Debentures, and additional distributions
9
("Additional Distributions") shall accumulate on the liquidation
amount of the Trust Securities (as such term is defined in the
Declaration), each at a rate of 25 basis points per annum; or
(ii) neither the Exchange Offer Registration Statement is declared
effective by the SEC on or prior to the 180th day after the Issue
Date nor a Shelf Registration Statement is declared effective by
the SEC on or prior to the later of (A) the 40th day after the
date such Shelf Registration Statement was required to be filed
and (B) the 180th day after the Issue Date, in respect of a Shelf
Registration Event attributable to any of the events set forth in
Sections 2(b)(i), (ii) and (iii), then, commencing on the day
after the applicable required effectiveness date, Liquidated
Damages shall accrue on the principal amount of the Subordinated
Debentures, and Additional Distributions shall accumulate on the
liquidation amount of the Trust Securities, each at a rate of 25
basis points per annum; or
(iii)(A) the Trust has not exchanged Exchange Capital Securities for
all Capital Securities or the Company has not exchanged Exchange
Debentures for all Subordinated Debentures, in each case validly
tendered during the Exchange Period, or executed the Exchange
Capital Securities Guarantee in respect of the Exchange Capital
Securities, in accordance with the terms of the Exchange Offer on
or prior to the 45th day after the date on which the Exchange
Offer Registration Statement was declared effective or (B) if
applicable, the Shelf Registration Statement in respect of a
Shelf Registration Event attributable to any of the events set
forth in Sections 2(b)(i), (ii) and (iii) has been declared
effective and such Shelf Registration Statement ceases to be
effective or usable for resales (whether as a result of an event
contemplated by Section 3(e) or otherwise) at any time prior to
the expiration of the Rule 144(k) Period (other than after such
time as all Securities have been disposed of thereunder or
otherwise cease to be Registered Securities), then Liquidated
Damages shall accrue on the principal amount of Subordinated
Debentures, and Additional Distributions shall accumulate on the
liquidation amount of the Trust Securities, each at a rate of 25
basis points per annum commencing on (x) the 46th day after such
effective date, in the case of (A) above, or (y) the day such
Shelf Registration Statement ceases to be effective or usable for
resales, in the case of (B) above;
provided, however, that neither the Liquidated Damages rate on the
Subordinated Debentures, nor the Additional Distribution rate on the
liquidation amount of the Trust Securities, may exceed in the
aggregate 25 basis points 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) or
(3) upon the exchange of Exchange Capital Securities and Exchange
Debentures for all Capital Securities and Subordinated Debentures
validly tendered and execution of the Exchange Capital Securities
Guarantee (in the case of clause (iii)(A) above) or at such time as
the Shelf Registration Statement that had ceased to remain effective
or usable for resales again becomes effective and usable for resales
(in the case of clause (iii)(B) above), Liquidated Damages on the
principal amount of the Subordinated Debentures and Additional
Distributions on the liquidation amount of the Trust Securities as a
result of such clause (or the relevant subclause thereof) shall cease
to accrue and accumulate, as the case may be.
Any amounts of Liquidated Damages and Additional Distributions due pursuant
to Section 2(e)(i), (ii) or (iii) above will be payable in cash on the next
succeeding August 15 and
10
February 15, as the case may be, to Holders on the relevant record dates for the
payment of interest and distributions pursuant to the Indenture and the
Declaration, respectively.
(f) Specific Enforcement. Without limiting the remedies available to the
Holders, the 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.
(g) Distribution of Subordinated Debentures. Notwithstanding any other
provisions of this Agreement, in the event that Subordinated
Debentures are distributed to holders of Capital Securities in
liquidation of the Trust pursuant to the Declaration, (i) all
references in this Section 2 and in Section 3 to Securities,
Registrable Securities and Exchange Securities shall not include the
Capital Securities and Capital Securities Guarantee or the Exchange
Capital Securities and Exchange Capital Securities Guarantee issued or
to be issued in exchange therefor in the Exchange Offer and (ii) all
requirements for any action to be taken by the Trust in this Section 2
and in Section 3 shall cease to apply and all requirements for any
action to be taken by the Company in this Section 2 and in Section 3
shall apply to the Subordinated Debentures and Exchange Debentures
issued or to be issued in exchange therefor in the Exchange Offer.
3. Registration Procedures. In connection with the obligations of the 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 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 under the Securities Act, which form (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, in the case of an Exchange Offer,
be available for the exchange of Registrable Securities and (iii)
shall comply as to form in all material respects with the requirements
of the applicable form and include all financial statements required
by the SEC to be filed therewith; and use their best efforts to cause
such Registration Statement to become effective and remain effective
(and, in the case of a Shelf Registration Statement, usable for
resales) in accordance with Section 2 hereof; provided, however, that
if (1) such filing is pursuant to Section 2(b), or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant
to Section 2(a) is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange
Securities, before filing any Registration Statement or Prospectus or
any amendments or supplements thereto, the 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 (not to exceed five
Business Days) 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
11
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 in a timely manner;
(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; and (ii) furnish to each Holder of
Registrable Securities included in the Shelf Registration Statement
and to each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or supplement
thereto, and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) consent to the
use of the Prospectus or any amendment or supplement thereto by each
of the selling Holders of Registrable Securities included in the Shelf
Registration Statement in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions by the time the applicable
Registration Statement is declared effective by the SEC as any Holder
of Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities
shall reasonably request in writing in advance of such date of
effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and
underwriter to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided, however,
that the 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) subject itself to taxation in any such
jurisdiction if it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the 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(u)
12
hereof, are seeking to sell Exchange Securities and are required to
deliver Prospectuses, promptly notify each Holder of Registrable
Securities, or such Participating Broker-Dealers, as the case may be,
their counsel and the managing underwriters, if any, and promptly
confirm such notice in writing (i) when a Registration Statement has
become effective and when any post-effective amendments 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 be offered or
sold by any Participating Broker-Dealer in any jurisdiction described
in paragraph 3(d) hereof or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Securities covered thereby, the representations and
warranties of the Company and the Trust contained in any purchase
agreement, securities sales agreement or other similar agreement cease
to be true and correct in all material respects, (v) of the happening
of any event or the failure of any event to occur or the discovery of
any facts, 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 in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (vi) of the reasonable
determination of the Company and the Trust that a post-effective
amendment to the Registration Statement would be appropriate;
(f) 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 (other than with respect
to restrictions requiring minimum transfers in blocks having an
aggregate principal or liquidation amount, as the case may be, of
$100,000 and multiples of $1,000 in excess thereof) 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,
promptly after the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement
or post-effective amendment to such Registration Statement or the
related Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such
13
Prospectus will not include 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 be reasonably requested by the Holders
of Registrable Securities or the Initial Purchasers on behalf of such
Holders available for discussion of such document; provided that the
Holders shall be required to agree in writing that such documents and
information 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 through no fault of the Holders.
(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 Debentures), as the case may
be, not later than the effective date of a Registration Statement, and
provide the applicable Trustee with 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 Capital Securities Guarantee
(in the case of a Shelf Registration) and the Exchange Capital
Securities Guarantee (in the case of an Exchange Offer Registration)
to be qualified under 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 cause the applicable 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 take all such other appropriate actions in connection
therewith as are reasonably requested by the Holders of at least 25%
in aggregate principal or liquidation amount, as the case may be, of
the Registrable Securities in order to expedite or facilitate the
registration or the disposition or the Registrable Securities;
(n) in the case of a Shelf Registration, whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, if requested by (x) either Initial
Purchaser, in the case where such Initial Purchaser holds Securities
acquired by it as part of its initial placement and (y) Holders of at
least 25% in aggregate principal or liquidation amount, as the case
may be, of the Registrable Securities covered thereby: (i) make such
representations and warranties to Holders of such Registrable
Securities and the underwriters (if
14
any), with respect to the business of the Trust, the Company and the
subsidiaries of the Company 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
aggregate principal or liquidation amount, as the case may be, 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
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 or liquidation amount, as the case may be, of
Registrable Securities covered by such Registration Statement and the
managing underwriters) customary for such agreements with respect to
all parties to be indemnified pursuant to said Section (including,
without limitation, such underwriters and selling Holders); and in the
case of an underwritten registration, the above requirements shall be
satisfied at each closing under the related underwriting agreement or
as and to the extent required thereunder;
(o) 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 Registrable
Securities or Participating Broker-Dealer, as applicable, who
certifies to the Company and the Trust that it has a current intention
to sell Registrable Securities pursuant to the Shelf Registration, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder, Participating Broker-Dealer, as
the case may be, or underwriter (collectively, the "Inspectors"), at
the offices where normally kept, during the Company's normal 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; records and information which the
Company and the Trust determine, in good faith, to be confidential and
any Records and information which it notifies the Inspectors are
confidential shall not be disclosed to any Inspector except where (i)
the disclosure of such Records or information is necessary to avoid or
correct a
15
material misstatement or omission in such Registration Statement, (ii)
the release of such Records or information 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)
such Records or information previously 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 Records and 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 through no fault of an Inspector or
a selling Holder; and each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required
to further agree in writing that it will, upon learning that
disclosure of such Records or information is sought in a court of
competent jurisdiction, or in connection with any action, suit or
proceeding, give notice to the Company and allow the Company at its
expense to undertake appropriate action to prevent disclosure of the
Records and information deemed confidential;
(p) comply with all applicable rules and regulations of the SEC so long as
any provision of this Agreement shall be applicable and make generally
available to its securityholders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal
quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12 month periods,
provided that the obligations under this paragraph (p) shall be
satisfied by the timely filing of quarterly and annual reports on
Forms 10-Q and 10-K under the Exchange Act;
(q) upon consummation of an Exchange Offer or a Private Exchange, if
requested by a Trustee, obtain an opinion of counsel to the Company
addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or the Private
Exchange, as the case may be, substantially to the effect that (i)
each of the Company and the Trust, as the case requires, has duly
authorized, executed and delivered the Exchange Securities and Private
Exchange Securities, and (ii) each of the Exchange Securities or the
Private Exchange Securities, as the case may be, constitutes a validly
issued, fully paid and nonassessable undivided beneficial ownership
interest in the assets of the Trust (in the case of an Exchange
Capital Security) or a legal, valid and binding obligation of the
Company, enforceable against the Company, in accordance with its
respective terms (in the case of an Exchange Debenture and the
Exchange Capital Securities Guarantee), as the case may be (in each
case, with customary exceptions);
(r) if an Exchange Offer or a Private Exchange 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 or the Private Exchange Securities, as the case may be, 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 canceled in exchange for the
Exchange
16
Securities or the Private Exchange Securities, as the case may be; it
being understood that in no event shall such Registrable Securities be
marked as paid or otherwise satisfied;
(s) 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;
(t) take all other steps necessary to effect the registration of the
Registrable Securities covered by a Registration Statement
contemplated hereby;
(u) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," which section shall be reasonably
acceptable to the Initial Purchasers or another representative of the
Participating Broker-Dealers, and which shall contain a summary
statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any
broker-dealer that holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer") and that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities to be received by such broker-dealer in the
Exchange Offer, whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies, in
the reasonable judgment of the Initial Purchasers or such other
representative, represent the prevailing views of the staff of the
SEC, including a statement that any such broker-dealer who receives
Exchange Securities for Registrable Securities pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver
a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities, (ii) furnish
to each Participating Broker-Dealer who has delivered to the 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 or supplement thereto), (iii) use their 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
17
activities or other trading activities, it will deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resale of Exchange Securities received in
respect of such Registrable Securities pursuant to the Exchange
Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Securities, the
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the Securities Act; and (B) in the case of any
Exchange Offer Registration Statement, the Company and the Trust agree
to deliver to the Initial Purchasers or to another representative of
the Participating Broker-Dealers, if requested by the Initial
Purchasers or such other representative of Participating
Broker-Dealers, on behalf of the Participating Broker-Dealers upon
consummation of the Exchange Offer (i) an opinion of counsel in form
and substance reasonably satisfactory to the Initial 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(f) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public offering of
debt securities and (iii) as well as upon the effectiveness of the
Exchange Offer Registration Statement, a comfort letter, in each case,
in customary form if permitted by Statement on Auditing Standards No.
72.
The 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 a Shelf Registration Statement, or if 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 this Section 3(u) 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 occurrence of any event
specified 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,
18
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 after the resolution of the related matters an amendment or
supplement to the Registration Statement and shall extend the period during
which such Registration Statement is required to be maintained effective and
usable for resales pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the 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 and Contribution.
(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, each Person, if any, who controls any of such parties
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and each of their respective partners, directors,
officers, employees and agents as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto),
covering Registrable Securities or Exchange Securities, as
applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission in the Registration Statement; provided that (subject to
Section 4(d) hereof) any such settlement is effected with the
prior written consent of the Company and the Trust; and
(iii)against any and all expenses whatsoever, as incurred (including
the fees and disbursements of counsel, except to the extent
otherwise expressly provided in Section 4(c) hereof), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph
(i) or (ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished in writing to the Company or the Trust by either Initial
Purchaser or such Holder, underwriter or Participating Broker-Dealer
for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
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(b) Each Initial Purchaser and each Holder, underwriter or Participating
Broker-Dealer agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors and officers (including each
officer of the Company and the Trust who signed the Registration
Statement), the Trust, each of the Trustees and each Person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense whatsoever described in the
indemnity contained in Section 4(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Company or the Trust by such Holder, underwriter or
Participating Broker-Dealer, as the case maybe, expressly for use in
such Registration Statement (or any amendment thereto), or any such
Prospectus (or any amendment or supplement thereto); provided,
however, that in the case of a Shelf Registration Statement, no such
Holder shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying
party from any liability which it may have under this Section 4 to the
extent that it is not materially prejudiced by such failure as a
result thereof, and in any event shall not relieve it from liability
which it may have otherwise on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 4(a) or (b) above,
counsel to the indemnified parties shall be selected by such parties.
An indemnifying party may participate at its own expense in the
defense of such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to local counsel),
separate from their own counsel, for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional written release of each
indemnified party from all liability arising out of such litiga tion,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly requested an
indemnifying party to reimburse the indemnified party for reasonable
fees and expenses of counsel pursuant to Section 4(a), such
indemnifying party agrees that it shall be liable for any settlement
of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have
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reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in
this Section 4 is for any reason held to be unenforceable by an
indemnified party although applicable in accordance with its terms,
the Company, the Trust and the Holders shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by such indemnity agreement incurred by the
Company, the Trust and the Holders, as incurred; provided, however,
that no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any Person that was not guilty of such fraudulent
misrepresentation. As between the Company, the Trust, and the Holders,
such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to
reflect the relative fault of the Company and Trust, on the one hand,
and the Holders, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault of the Company and the
Trust, on the one hand, and of the Holders, on the other hand, shall
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or the Trust, on the one hand, or by or on
behalf of the Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Trust and the Holders of
the Registrable Securities agree that it would not be just and
equitable if contribution pursuant to this Section 4 were to be
determined by pro rata allocation or by any other method of allocation
that does not take into account the relevant equitable considerations.
For purposes of this Section 4, each Affiliate of a Holder, and each
partner, director, officer, employee and Person, if any, who controls
a Holder or such Affiliate within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Holder, and each director of the
Company, each Trustee of the Trust and each Person, if any, who
controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as each of the Company or the Trust.
5. Participation in an Underwritten Registration. No Holder may participate in
an underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder's Registrable Securities on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents reasonably required under the terms of
such underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities covered by
the Shelf Registration Statement who desire to do so may sell the
Securities covered by such Shelf Registration in an underwritten offering,
subject to the provisions of Section 3(m) hereof. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal or liquidation amount, as applicable, of the
Registrable Securities included in such offering; provided, however, that
such underwriters and managers must be reasonably satisfactory to the
Company and the Trust.
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7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, the Company will file the
reports required to be filed by it under the Securities Act and
Section 13(a) or 15(d) of the Exchange Act and the rules and
regulations adopted by the SEC thereunder; provided, however, that if
the Company ceases to be so required to file such reports, it will,
upon the request of any Holder of Registrable Securities (a) make
publicly available such information as is necessary to permit sales of
its securities pursuant to Rule 144 under the Securities Act, (b)
deliver such information to a prospective purchaser as is necessary to
permit sales of its securities pursuant to Rule 144A under the
Securities Act and (c) take such further action that is reasonable in
the circumstances, in each case, to the extent required from time to
time to enable such Holder to sell its Registrable Securities without
registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such
rule may be amended from time to time, (ii) Rule 144A under the
Securities Act, as such rule may be amended from time to time, or
(iii) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company
will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. Neither the Company nor the Trust has
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 which 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 or liquidation amount of the outstanding
Registrable Securities affected by such amendment, modification,
supplement, waiver or departure; provided that no amendment,
modification or supplement or waiver or consent to the departure with
respect to the provisions of Section 4 hereof shall be effective as
against any Holder of Registrable Securities unless consented to in
writing by such Holder of Registrable Securities. Notwithstanding the
foregoing sentence, (i) this Agreement may be amended, without the
consent of any Holder of Registrable Securities, by written agreement
signed by the Company, the Trust and the Initial Purchasers, 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 the Initial Purchasers
to the extent that any such amendment, modification, supplement,
waiver or consent is,
22
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 an Initial Purchaser, such provision may be
amended, modified or supplemented, and waivers or consents to
departures from such provisions may be given, by written agreement
signed by such Initial Purchaser, the Company and the Trust. Each
Holder of Registrable Securities shall be bound by any amendment or
waiver effected pursuant to this Section 7(c), whether or not any
notice, writing or marking indicating such amendment or waiver appears
on such security or is delivered to such Holder.
(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 each Initial
Purchaser, 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, the Declaration 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 Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be third party beneficiaries of the agreements
made hereunder among the Initial Purchasers, the Company and the
Trust, and the Initial Purchasers 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; Facsimile. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
and signature pages may be delivered
23
by facsimile, 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 EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF
PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(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 any Affiliates shall not be counted
in determining whether such consent or approval was given by the
Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
CASCADE FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and Chief Executive Officer
CASCADE CAPITAL TRUST I
By: CASCADE FINANCIAL CORPORATION,
as Sponsor
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇.▇. ▇▇▇▇▇▇▇▇
President
SANDLER ▇'▇▇▇▇▇ & PARTNERS, L.P.
Acting severally on behalf of itself
and as representative of the several
Initial Purchasers named in Schedule A
of the Purchase Agreement.
By: SANDLER ▇'▇▇▇▇▇ & PARTNERS CORP.,
the sole general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
25