UNION STATE CAPITAL TRUST I
$20,000,000
9.58% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
U.S.B. HOLDING CO., INC.
REGISTRATION AGREEMENT
New York, New York
February 5, 1997
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Two World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Union State Capital Trust I, a Delaware statutory business trust (the "Trust"),
and U.S.B. Holding Co., Inc., a Delaware corporation (the "Company"), as
guarantor, propose to issue and sell to Xxxxx, Xxxxxxxx & Xxxxx, Inc. (the
"Purchaser"), upon the terms set forth in a purchase agreement dated as of
January 31, 1997 by and among the parties hereto (the "Purchase Agreement"),
20,000 of the Trust's 9.58% Capital Securities, liquidation amount $1,000 per
Capital Security (the "Capital Securities" and together with the guarantee by
the Company of the payment of the Capital Securities to the extent set forth in
the Guarantee (as defined herein), the "Pass-through Securities") (the "Initial
Placement"). The proceeds of the sale by the Trust of the Pass-through
Securities and its 9.58% Common Securities, liquidation amount $1,000 per Common
Security (the "Common Securities"), are to be invested in the 9.58% Junior
Subordinated Debt Securities of the Company having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Securities and the
Common Securities (the "Junior Subordinated Debt Securities"). As an inducement
to you to enter into the Purchase Agreement and in satisfaction of a condition
to your obligations thereunder, the Trust and the Company agree with you, (i)
for your benefit and (ii) for the benefit of the holders from time to time (each
of the foregoing a "Holder" and together the "Holders") of the Securities (as
defined herein) or the Exchange Securities (as defined herein), as follows:
1. Definitions. Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Additional Distributions" has the meaning given such term in Section7
hereof.
"Affiliate" of any specified person means any other person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person.
"Closing Date" has the meaning given such term in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Declaration" means the Amended and Restated Declaration of Trust relating
to the Capital Securities and the Exchange Capital Securities dated as of
February 5, 1996, among the Company, as Depositor, Xxxxxx X. Xxxxx, Xxxxxxx X.
Xxxx, Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx, as administrative trustees, the
Property Trustee and Chase Manhattan Bank Delaware, a Delaware banking
corporation, as Delaware trustee, as the same may be amended from time to time
in accordance with the terms thereof.
"Distribution Event" shall mean the distribution of Junior Subordinated
Debt Securities or Exchange Junior Subordinated Debt Securities, as the case may
be, to the holders of Capital Securities or Exchange Capital Securities, as the
case may be, as provided in the Declaration.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Capital Securities" means securities of the Trust to be issued
under the Declaration and which are identical in all material respects to the
Capital Securities (except that the distribution rate step-up provisions and the
transfer restrictions will be modified or eliminated, as appropriate).
"Exchange Guarantee" means the guarantee by the Company of the Exchange
Capital Securities, identical in all material respects to the Guarantee.
"Exchange Junior Subordinated Debt Securities" means debt securities of the
Company to be issued under the Junior Subordinated Indenture and which are
identical in all material respects to the Junior Subordinated Debt Securities
(except that the interest rate step-up provisions and the transfer restrictions
will be modified or eliminated, as appropriate).
"Exchange Offer Registration Period" means the 180-day period following the
consummation of the Registered Exchange Offer, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the
Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement of
the Trust and the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer (and, if a Distribution Event shall not have
occurred prior to the effectiveness of such Exchange Offer Registration
Statement and the Company shall not have elected to include the Junior
Subordinated Debt Securities held by the Trust in the Registered Exchange Offer
pursuant to Section 2(g) hereof, with respect to the distribution of the Junior
Subordinated Debt Securities upon the occurrence of a Distribution Event), 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.
"Exchange Pass-through Securities" means the Exchange Capital Securities
together with the Exchange Guarantee.
"Exchange Securities" means (i) if a Distribution Event shall not have
occurred prior to the Registered Exchange Offer, (a) the Exchange Pass-through
Securities and (b) if the Company shall elect to include the Junior Subordinated
Debt Securities held by the Trust in the Registered Exchange Offer pursuant to
Section 2(g) hereof, the Exchange Junior Subordinated Debt Securities or (ii) if
a Distribution Event shall have occurred prior to the Registered Exchange Offer,
the Exchange Junior Subordinated Debt Securities.
"Exchanging Dealer" means any Holder (which may include the Purchaser)
which is a broker-dealer electing to exchange Securities acquired for its own
account as a result of market-making activities or other trading activities for
Exchange Securities.
"Final Memorandum" has the meaning set forth in the Purchase Agreement.
"Guarantee" means the guarantee by the Company of certain obligations of
the Trust with respect to the Capital Securities and the Common Securities
pursuant to the Guarantee Agreement dated as of February 5, 1997 between the
Company and the Guarantee Trustee.
"Guarantee Trustee", "Indenture Trustee" and "Property Trustee" each mean
The Chase Manhattan Bank, a New York banking corporation.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Junior Subordinated Indenture" means the Junior Subordinated Indenture
relating to the Junior Subordinated Debt Securities and the Exchange Junior
Subordinated Debt Securities dated as of February 5, 1997 between the Company
and the Indenture Trustee.
"Liquidated Damages"has the meaning given such term in Section 7 hereof.
"Majority Holders" means the Holders of a majority of the aggregate
liquidation amount or of the aggregate principal amount, as applicable, of
securities registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration Statement
(including a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Securities or the Exchange Securities, covered by such Registration Statement,
and all amendments and supplements to the Prospectus, including post-effective
amendments.
"Registered Exchange Offer" means the proposed offer to the Holders to
issue and deliver to such Holders a like liquidation amount or principal amount,
as the case may be, of the Exchange Securities, in exchange for (i) if a
Distribution Event shall not have occurred, (a) the Pass-Through Securities and
(b) if the Company shall elect to include the Junior Subordinated Debt
Securities held by the Trust in the Registered Exchange Offer pursuant to
Section 2(g) hereof, the Junior Subordinated Debt Securities or (ii) if a
Distribution Event shall have occurred, the Junior Subordinated Debt Securities.
"Registration Statement" means any Exchange Offer Registration Statement or
Shelf Registration Statement that covers any of the Securities or the Exchange
Securities pursuant to the provisions of this Agreement, and 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.
"Securities" means (i) if a Distribution Event shall not have occurred, the
Pass-through Securities and the Junior Subordinated Debt Securities or (ii) if a
Distribution Event shall have occurred, the Junior Subordinated Debt Securities.
"Shelf Registration" means a registration effected pursuant to Section 3
hereof.
"Shelf Registration Period" has the meaning given such term in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement of the
Trust and the Company pursuant to the provisions of Section 3 hereof that covers
some or all of the Securities or the Exchange Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, and 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.
"Trustee" means the Guarantee Trustee, the Indenture Trustee or the
Property Trustee, as applicable.
"Underwriter" means any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities by Exchanging
Dealers. (a) The Trust and the Company shall prepare and, not later than 150
days following the Closing Date, shall file with the Commission the Exchange
Offer Registration Statement. The Trust and the Company shall use their best
efforts to cause the Exchange Offer Registration Statement to become effective
under the Act within 180 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Trust and the Company shall promptly commence the Registered Exchange Offer,
it being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for Exchange Securities (assuming that such
Holder is not an affiliate of the Trust or the Company within the meaning of the
Act, acquires the Exchange Securities in the ordinary course of such Holder's
business and has no arrangements with any person to participate in the
distribution (within the meaning of the Act) of the Exchange Securities) to
transfer such Exchange Securities from and after their receipt without any
limitations or restrictions under the Act and without material restrictions
under the securities laws of a substantial proportion of the several states of
the United States.
(c) In connection with the Registered Exchange Offer, the Trust and the
Company 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 Registered Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if required by
applicable law);
(iii) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Trust and the Company shall:
(i) accept for exchange all Securities validly tendered and not withdrawn
pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so accepted for
exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each Holder
of tendered Securities, Exchange Securities equal in liquidation amount or
principal amount, as the case may be, to the Securities of such Holder so
accepted for exchange therefor.
(e) The Purchaser and the Trust and the Company acknowledge that, pursuant
to interpretations by the Commission's staff of Section 5 of the Act, and in the
absence of an applicable exemption therefrom, each Exchanging Dealer is required
to deliver a Prospectus in connection with a sale of any Exchange Securities
received by such Exchanging Dealer pursuant to the Registered Exchange Offer in
exchange for Securities acquired for its own account as a result of
market-making activities or other trading activities. Accordingly, the Trust
and the Company shall:
(i) include the information set forth in Annex A hereto on the cover of the
Exchange Offer Registration Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth details of the
Registered Exchange Offer, and in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part of the Exchange Offer
Registration Statement, and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; and
(ii) use their best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act during the Exchange Offer
Registration Period for delivery of the Prospectus forming a part thereof by
Exchanging Dealers in connection with sales of Exchange Securities received
pursuant to the Registered Exchange Offer, as contemplated by Section 4(h)
below.
(f) In the event that the Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of unsold Securities purchased by it in the
Initial Placement, at the request of the Purchaser, the Company shall issue and
deliver to the Purchaser, in exchange for such Securities, a like principal
amount of Exchange Securities (provided that such Exchange Securities shall
include legends with respect to restrictions on transfer), and the Company
shall, starting on the date of effectiveness of the Exchange Offer Registration
Statement and ending on the close of business on the 180th day following such
date, make available as many copies of the Exchange Offer Registration Statement
prospectus, as amended or supplemented, as reasonably requested by the
Purchaser. The Trust and the Company shall seek to cause the CUSIP Service
Bureau to issue the same CUSIP number for such Exchange Securities as for
Exchange Securities issued pursuant to the Registered Exchange Offer. The
Purchaser agrees to promptly notify the Company in writing following its resale
of the Securities purchased in the Initial Placement.
(g) Notwithstanding anything in this Agreement to the contrary, if a
Distribution Event shall not have occurred prior to the Registered Exchange
Offer, the Company may offer to, and the Trust shall agree to, exchange the
Junior Subordinated Debt Securities held by the Trust for an identical principal
amount of Exchange Junior Subordinated Debt Securities as part of the Registered
Exchange Offer; provided, however that, until a Distribution Event shall have
occurred, such Exchange Junior Subordinated Debt Securities shall include
appropriate legends with respect to transfer restrictions.
3. Shelf Registration. If, (i) because of any change in law or applicable
interpretations thereof by the Commission's staff, the Trust and the Company
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof, or
(ii) the Company shall determine in good faith that there is a reasonable
likelihood, or that a material uncertainty exists as to whether, consummation of
the Exchange Offer would result in a material adverse tax consequence to the
Company, or (iii) for any reason the Exchange Offer Registration Statement is
not declared effective within 180 days of the Closing Date, the following
provisions shall apply:
(a) The Trust and the Company shall, as promptly as practicable (but in no
event more than 60 days after the earliest of a Company determination pursuant
to clause (i) or (ii) above or the 180th day after the Closing Date), file with
the Commission and thereafter use their best efforts to cause to be declared
effective under the Act a Shelf Registration Statement relating to the offer and
sale of the Securities by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement.
(b) The Trust and the Company shall use their best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of three
years (or, if Rule144(k) is amended to provide a shorter restrictive period,
such shorter period) from the Closing Date, or such shorter period that will
terminate when all the Securities or Exchange Securities, as applicable, covered
by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (in anysuch case, such period being called the "Shelf
Registration Period").
4.Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent specified, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to you, prior to the filing
thereof with the Commission, a copy of any Shelf Registration Statement and any
Exchange Offer Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein and shall
use their best efforts to reflect in each such document, when so filed with the
Commission, such comments as you reasonably may propose.
(b) The Trust and the Company shall ensure that (i)any Registration
Statement and any amendment there to and any Prospectus forming part thereof and
any amendment or supplement thereto complies in all material respects with the
Act, (ii)any Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming part of any
Registration Statement, and any amendment or supplement to such Prospectus, does
not, during the period when delivery thereof is required, include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements, in the light of the circumstances under which they were
made, not misleading.
(c) (1) The Trust and the Company shall advise the Purchaser and, in the
case of a Shelf Registration Statement, the Holders of securities covered
thereby to the extent specified in (i) below, and, if requested by you or any
such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto has been filed
with the Commission and when the Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus included therein or for additional
information.
(2) The Trust and the Company shall advise the Purchaser and, in the case
of a Shelf Registration Statement, the Holders of securities covered thereby,
and, in the case of an Exchange Offer Registration Statement, any Exchanging
Dealer which has provided in writing to the Trust and the Company a telephone or
facsimile number and address for notices, and, if requested by you or any such
Holder or Exchanging Dealer, confirm such advice in writing of:
(i)the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose;
(ii) the receipt by the Company or the Trust of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) the suspension of the use of the Prospectus.
(d) The Trust and the Company shall use their best efforts to obtain the
withdrawal of any order suspending the effectiveness or use of any Registration
Statement at the earliest possible time.
(e) The Trust and the Company shall furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits (including those
incorporated by reference).
(f)The Trust and the Company shall, during the Shelf Registration Period,
deliver to each Holder of securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Trust and the Company consent to the use of the Prospectus or
any amendment or supplement thereto as to which no notice has been given
pursuant to paragraph 4(c)(2) by each of the Holders selling securities in
connection with the offering and sale of the securities covered by the
Prospectus or any amendment or supplement thereto.
(g) The Trust and the Company shall furnish to each Exchanging Dealer which
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
(including those incorporated by reference).
(h) The Trust and the Company shall, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge, as many
copies of the Prospectus included in such Exchange Offer Registration Statement
and any amendment or supplement thereto as such Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in connection with a sale of
Exchange Securities received by it pursuant to the Registered Exchange Offer;
and the Trust and the Company consent to the use of the Prospectus or any
amendment or supplement thereto as to which no notice has been given pursuant to
paragraph 4(c)(2) by any such Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or the effectiveness of a
Registration Statement with respect to any other offering of securities, the
Trust and the Company shall, if required by applicable law, register or qualify
or cooperate with the Holders of securities included therein and their
respective counsel in connection with the registration or qualification of such
securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holders reasonably request in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such United States jurisdictions of the securities covered by such Registration
Statement; provided, however, that neither the Trust nor the Company will be
required to qualify generally to do business in any jurisdiction where it is not
then so qualified or to take any action that would subject it to general service
of process or to taxation in any such jurisdiction where it is not then so
subject.
(j) Unless the applicable securities shall be in book-entry only form, the
Trust and the Company shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
Holders may request prior to sales of securities pursuant to such Registration
Statement.
(k) Upon the occurrence of any event contemplated by paragraphs c(1)(ii) or
(c)(2)(iii) above, the Trust and the Company shall prepare as soon as possible a
post-effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document so
that, as thereafter delivered to purchasers of the securities included therein,
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(l) The Trust and the Company shall use their best efforts to cause The
Depository Trust Company ("DTC") on the first business day following the
effective date of any Shelf Registration Statement hereunder or as soon as
possible thereafter to remove (i)from any existing CUSIP number assigned to the
Pass-through Securities or Junior Subordinated Debt Securities, as the case may
be, any designation indicating that such securities are "restricted securities",
which efforts shall include delivery to DTC of a letter executed by the Trust
and the Company substantially in the form of Annex E hereto and (ii) any other
stop or restriction on DTC's system with respect to such securities. In the
event the Trust and the Company are unable to cause DTC to take the actions
described in the immediately preceding sentence, the Company shall take such
actions as you may reasonably request to provide, as soon as practicable, a
CUSIP number for the Pass-through Securities or Junior Subordinated Debt
Securities, as the case may be, registered under such Registration Statement and
to cause such CUSIP number to be assigned to such securities (or to the maximum
aggregate principal amount of such securities to which such number may be
assigned). Upon compliance with the foregoing requirements of this Section 4(l),
the Trust and the Company shall provide the Trustee with printed certificates
for such securities, in a form eligible for deposit with DTC.
(m) The Trust and the Company shall use their best efforts to comply with
all applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(n) The Trust and the Company shall cause the Junior Subordinated
Indenture, the Declaration and the Guarantee to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Trust and the Company may require each Holder of securities to be
sold pursuant to any Shelf Registration Statement to furnish to the Trust and
the Company such information regarding such Holder and the distribution of such
securities by such Holder as the Trust and the Company may from time to time
reasonably require for inclusion in such Registration Statement, and securities
of a holder that does not provide information necessary for inclusion in such
Registration Statement may be omitted from any Shelf Registration Statement.
(p) The Trust and the Company shall, if reasonably requested, and in no
event more than three times, promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement, such information as
the Managing Underwriters and Majority Holders reasonably agree should be
included therein and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Trust and the
Company shall enter into such agreements (including underwriting agreements) and
take all other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Securities or the Exchange Securities, as
the case may be, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 6 (or such other
provisions and procedures acceptable to the Majority Holders and the Managing
Underwriters, if any) with respect to all parties to be indemnified pursuant to
Section 6.
(r) In the case of any Shelf Registration Statement, the Trust and the
Company shall (i) make reasonably available for inspection by the Holders of
securities to be registered thereunder, subject to their acceptance of the
provisions of this Section 4(r), any underwriter participating in any
distribution pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Trust or the Company and its subsidiaries as shall reasonably
be required in connection with the discharge of their due diligence obligations;
(ii)cause the Company's officers, directors and employees and any relevant
trustee to supply all relevant information reasonably requested by the Holders
or any such underwriter, attorney, accountant or agent in connection with any
such Registration Statement as is customary for similar due diligence
examinations; provided, however, that, in the case of clause(i) and(ii) above,
any information that is designated in writing by the Trust or the Company, in
good faith, as confidential at the time of delivery of such information shall be
kept confidential by the Holders and any such underwriter, attorney, accountant
or agent and any person acting on behalf of any of them, unless such disclosure
is made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality; and provided further,
however, that the foregoing inspection and information gathering shall be
coordinated on behalf of the Holders and the other parties entitled thereto by
one counsel designated by and on behalf of such Holders and other parties; (iii)
make such representations and warranties to the Holders of securities registered
thereunder and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings
and covering such matters as are customarily covered in representations and
warranties requested in primary underwritten offerings; (iv) obtain opinions of
counsel to the Trust and the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters and with such exceptions as are
customarily covered or taken in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Holders and
underwriters (it being agreed that the matters to be covered by such counsel
shall include, without limitation, as of the date of the opinions and as of the
effective date of the Registration Statement or most recent post-effective
amendment thereto, as the case may be, a statement by such counsel regarding the
absence from such Registration Statement and the Prospectus included therein, as
then amended or supplemented, including the documents incorporated by reference
therein, of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading); (v) obtain "cold comfort" letters and
updates thereof from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each selling Holder of securities
registered thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and (vi) deliver such documents
and certificates as may be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence compliance with
Section 4(k) and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Trust and the Company. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
4(r) shall be performed at (A) the effectiveness of such Registration Statement
and each post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement, if requested by
the Purchaser, the Trust and the Company shall (i) make reasonably available for
inspection by the Purchaser, and any attorney, accountant or other agent
retained by the Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries or the
Trust as shall reasonably be required in connection with the discharge of their
due diligence obligations; (ii) cause the Company's officers, directors and
employees and any relevant trustee to supply all relevant information reasonably
requested by the Purchaser or any such attorney, accountant or agent in
connection with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that, in the case of clause (i) and
(ii) above, any information that is designated in writing by the Company or the
Trust, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Purchaser and any such attorney,
accountant or agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to the
public generally or through a third party without an accompanying obligation of
confidentiality; (iii) make such representations and warranties to the
Purchaser, in form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering such matters; (iv)
obtain opinions of counsel to the Trust and the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Purchaser and its counsel, addressed to the Purchaser,
covering such matters as are customarily covered in opinions request ed in
underwritten offerings and such other matters as may be reasonably requested by
the Purchaser or its counsel (it being agreed that the matters to be covered by
such counsel shall include, without limitation, as of the date of the opinions
and as of the effective date of the Registration Statement or most recent
posteffective amendment thereto, as the case may be, a statement by such counsel
regarding the absence from such Registration Statement and the Prospectus
included therein, as then amended or supplemented, including the documents
incorporated by reference therein, of an untrue statement of a material fact or
the omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading); (v) obtain "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to the
Purchas er, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings, or if requested by the Purchaser or its counsel in lieu of a "cold
comfort" letter, an agreed-upon procedures letter under Statement on Auditing
Standards No. 35, covering matters requested by the Purchaser or its counsel;
and (vi) deliver such documents and certificates as may be reasonably requested
by the Purchaser or its counsel, including those to evidence compliance with
Section 4(k) and with conditions customarily contained in underwriting
agreements. The foregoing actions set forth in clauses (iii), (iv), (v), and
(vi) of this Section 4(s) shall be performed, if requested by the Purchaser, at
the closing of the Registered Exchange Offer and the effective date of any
post-effective amendment to the Exchange Offer Registration Statement.
5. Registration Expenses. The Trust and the Company shall bear all expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Purchaser for the reasonable fees and
disbursements of counsel acting in connection therewith.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company agrees to indemnify and hold harmless each
Holder of securities covered thereby (including the Purchaser and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each such
Holder and each person who controls any such Holder within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or
in any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the Trust
and the Company by or on behalf of any such Holder specifically for inclusion
therein and (ii) such indemnity with respect to any untrue statement or omission
in any preliminary Prospectus relating to a Shelf Registration Statement shall
not inure to the benefit of any Holder from whom the person asserting any such
loss, claim, damage or liability purchased the securities that are the subject
thereof, to the extent that any such loss, claim, damage or liability of such
Holder occurs under the circumstances where it shall have been determined by a
court of competent jurisdiction by final and nonappealable judgment that (w) the
Trust and the Company had previously furnished copies of the final Prospectus to
such Holder, (x) delivery of the final Prospectus was required by the Act to be
made to such person, (y) the untrue statement or omission of a material fact
contained in the preliminary Prospectus was completely corrected in the final
Prospectus and (z) there was not sent or given to such person, at or prior to
the written confirmation of the sale of such securities to such person, a copy
of the final Prospectus. This indemnity agreement will be in addition to any
liability which the Trust and the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses (as defined
below) of, as provided in Section 6(d) hereof, any underwriters of securities
registered under a Shelf Registration Statement, their officers and directors
and each person who controls such underwriters on substantially the same basis
as that of the indemnification of the Purchasers and the selling Holders
provided in this Section 6(a) and shall, if requested by any underwriter, enter
into an underwriting agreement reflecting such agreement, as provided in Section
4(q) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including the Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer) shall be required
to severally agree to indemnify and hold harmless (i) the Trust and the Company,
(ii) each of the Company's directors, (iii) each of the Company's officers or
any trustee of the Trust who signs such Registration Statement and (iv) each
person who controls the Company or the Trust within the meaning of either the
Act or the Exchange Act to the same extent as the foregoing indemnity from the
Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Trust or the Company by or on behalf of
such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above or paragraph (d) below unless and to
the extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than obligations provided under this Section 6.
The indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel) (it being understood that the indemnifying party shall not be
liable for the fees, costs and expenses of more than one separate counsel (and,
to the extent necessary, one local counsel in each jurisdiction)), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified par- ties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this
Section 6 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending the same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Trust and the Company shall be deemed to be equal to
the total net proceeds from the Initial Placement (before deducting expenses) as
set forth on the cover page of the Final Memorandum. Benefits received by the
Purchaser shall be deemed to be equal to the total purchase discounts,
commissions or compensation as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the excess, if any, of the value to such Holder of receiving Securities
or Exchange Securities, as applicable, registered under the Act over the value
to such Holder of holding Securities not registered under the Act. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. Relative fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
or the Trust within the meaning of either the Act or the Exchange Act, each
officer of the Company and each trustee of the Trust who shall have signed the
Registration Statement and each director of the Company and each trustee of the
Trust shall have the same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder, the Company
or the Trust or any of the officers, directors, trustees or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. Liquidated Damages and Additional Distributions Under Certain
Circumstances.
If (i) (A) neither the Exchange Offer Registration Statement nor
a Shelf Registration Statement is filed with the Commission on or
prior to the 150th day after the Closing 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 3, then, commencing
on the day after either such required filing date, liquidated damages
("Liquidated Damages") shall accrue on the principal amount of the
Junior Subordinated Debt Securities, and additional distributions
("Additional Distributions") shall accumulate on the liquidation
amount of the Trust Securities (as defined in the Final Memorandum),
each at a rate of .25% per annum; or
(ii) (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is declared effective by the Commission
on or prior to the 180th day after the Closing 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 declared effective by the Commission on
or prior to the 30th day after the date such Shelf Registration
Statement was required to be filed, then, commencing on the 181st day
after the Closing Date, Liquidated Damages shall accrue on the
principal amount of the Junior Subordinated Debt Securities, and
Additional Distributions shall accumulate on the liquidation amount of
the Trust Securities, each at a rate of .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 Guarantee or Exchange Junior Subordinated Debt Securities for
the Guarantee and all Junior Subordinated Debt Securities validly
tendered in accordance with the terms of the Exchange Offer on or
prior to the 30th day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) if applicable,
the Shelf Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be effective or usable by the
Holders at any time prior to the third anniversary of the Closing Date
(other than after such time as all Capital Securities have been
disposed of thereunder), then Liquidated Damages shall accrue on the
principal amount of Junior Subordinated Debt Securities, and
Additional Distributions shall accumulate on the Liquidation Amount of
the Trust Securities, each at a rate of .25% per annum commencing on
(x) the 31st 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 in the case of (B) above; provided that if the
Shelf Registration Statement has ceased to be effective or usable
solely as a result of (x) the filing by the Company of a post
effective amendment to such Shelf Registration Statement to
incorporate annual audited financial informa tion with respect to the
Company where such post-effec tive amendment is not yet effective and
must be de clared effective to permit Holders to use the related
Prospectus or (y) the occurrence of other material events with respect
to the Company or the Trust (provided the Company is proceeding
promptly and in good faith to amend the Shelf Registration Statement
to describe such events), then Liquidated Damages and Additional
Distributions shall not accrue during such period for which the Shelf
Registration Statement is not effective or usable unless such period
exceeds 45 days;
provided, however, that neither the Liquidated Damages rate on the Junior
Subordinated Debt Securities, nor the Additional Distributions rate on the
Liquidation Amount of the Trust Securities, payable pursuant to this Section 7
may exceed in the aggregate .25% per annum; provided, further, however, that (1)
upon the filing of the Exchange Offer Registration Statement or the Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement (in the case of clause (ii) above), (3) upon the exchange
of Exchange Capital Securities, the Exchange Guarantee and Exchange Junior
Subordinated Debt Securities for all Capital Securities, the Guarantee and
Junior Subordinated Debt Securities 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), and (4) upon
the expiration of the Shelf Registration Period, Liquidated Damages on the
Junior Subordinated Debt Securities, and Additional Distributions on the
Liquidation Amount of the Trust Securities as a result of such clause (or the
relevant subclause thereof), as the case may be, shall cease to accrue.
Any amounts of Liquidated Damages and Additional Distributions due pursuant
to the foregoing paragraphs will be payable in cash on February 1 and August 1
each year to the holders of record on the preceding January 15 and July 15,
respectively.
8. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Trust and the Company
has not, as of the date hereof, entered into, nor shall it, on or
after the date here of, enter into, any agreement with respect to the
Securities that is inconsistent with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the
Trust and the Company have obtained the written consent of the Holders
of at least a majority of the then outstanding aggregate liquidation
amount or principal amount, as the case may be, of Securities (or,
after the consummation of any Exchange Offer in accordance with
Section 2 hereof, of Exchange Securities); provided, however, that,
with respect to any matter that affects the rights of the Purchaser
hereunder, the Trust and the Company shall obtain the written consent
of the Purchaser. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights
of other Holders may be given by the Majority Holders, determined on
the basis of securities being sold rather than registered under such
Registration Statement.
(c) Notices. All notices and other communica tions provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to a Holder, at the most current
address given by such Holder to the Company in
accordance with the provisions of this Section 8(c),
which address initially is, with respect to each
Holder, the address of such Holder maintained by
the Securities Registrar (as defined in the
Declaration), with a copy in like manner to the
Purchaser;
(2) if to you, initially at the address set
forth in the Purchase Agreement; and
(3) if to the Company or the Trust, initially
at the address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received.
The Purchaser, the Trust or the Company by notice to the other
may designate additional or different addresses for subsequent notices
or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including, without the need for an express assignment or
any consent by the Company or the Trust thereto, subsequent Holders of
Securities and/or Exchange Securities. The Trust and the Company
hereby agree to extend the benefits of this Agreement to any Holder of
Securities and/or Exchange Securities and any such Holder may
specifically enforce the provisions of this Agreement as if an
original party hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New
York applicable to agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of
any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by
law.
(i) Securities Held by the Trust or the Company. Whenever the
consent or approval of Holders of a specified percentage of
liquidation amount or principal amount, as the case may be, of
Securities or Exchange Securities is required hereunder, Securities or
Exchange Securities, as applicable, held by the Trust or the Company
or their respective Affiliates (other than subsequent Holders of
Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such
Securities or Exchange Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
Please confirm that the foregoing correctly sets forth the agreement among
the Trust, the Company and you.
Very truly yours,
UNION STATE CAPITAL TRUST I
by: /s/
---------------------------------
Name:
Title:
U.S.B. HOLDING CO., INC.
by: /s/
---------------------------------
Name:
Title:
Accepted in New York, New York
February 5, 1997
XXXXX, XXXXXXXX & XXXXX, INC.
by:
_______________________
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a brokerdealer in connection with
resales of Exchange Securities received in exchange for Securities acquired by
such brokerdealer as a result of market-making activities or other trading
activities. The Trust and the Company have agreed that, ending on the close of
business on the 180th day following the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in
exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
ANNEX C
Plan of Distribution
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Trust and the Company have agreed that, starting on the
Expiration Date and ending on the close of business on the 180th day following
the Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until ___________, 199__, all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.
The Trust and the Company will not receive any proceeds from any sale of
Exchange Securities by brokerdealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer and/or the
purchasers of any such Exchange Securities. Any brokerdealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such Exchange Securities may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit of any such resale of Exchange Securities
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Trust and the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Trust and the Company have agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel
for the holders of the Securities) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Securities (including
any broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:__________________________________________
Address: ______________________________________
______________________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for Exchange Securities were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
Union State Capital Trust I
U.S.B. Holding Co., Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: 9.58% Capital Securities (the "Securities")
of Union State Capital Trust I, fully and
unconditionally guaranteed by U.S.B. Holding
Co., Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has declared
effective a Registration Statement on Form S-3 under the Securities Act of 1933
with regard to all of the Securities referenced above. Accordingly, there is no
longer any restriction as to whom such Securities may be sold and any
restrictions on the CUSIP designation are no longer appropriate and may be
removed. I understand that upon receipt of this letter, DTC will remove any stop
or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of further
assistance.
UNION STATE CAPITAL TRUST I
by: /s/
----------------------------------
Authorized Officer
U.S.B. HOLDING CO., INC.
by: /s/
----------------------------------
Authorized Officer
