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REGISTRATION RIGHTS AGREEMENT
Dated June 6, 1997
among
ALBANK FINANCIAL CORPORATION
ALBANK CAPITAL TRUST I
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
as Initial Purchaser
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement")
is made and entered into as of June 6, 1997 among ALBANK
FINANCIAL CORPORATION, a Delaware corporation (the "Company"),
ALBANK CAPITAL TRUST I, a statutory business trust created under
the laws of the state of Delaware (the "Trust"), and XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED (the "Initial
Purchaser").
This Agreement is made in connection with the Purchase
Agreement dated June 4, 1997 the "Purchase Agreement"), among the
Company, as issuer of the 9.27% Series A Junior Subordinated
Deferrable Interest Debentures due June 6, 2027 (the
"Subordinated Debentures"), the Trust and the Initial Purchaser,
which provides for among other things, the sale by the Trust to
the Initial Purchaser of 50,000 of the Trust's 9.27% Series A
Capital Securities, liquidation amount $1,000 per Capital
Security (the "Capital Securities") the proceeds of which will be
used by the Trust to purchase Subordinated Debentures. The
Capital Securities, together with the Subordinated Debentures and
the Company's guarantee of the Capital Securities (the "Capital
Securities Guarantee") are collectively referred to as the
"Securities". In order to induce the Initial Purchaser to enter
into the Purchase Agreement, the Company and the Trust have
agreed to provide to the Initial Purchaser 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.
"Applicable Period" shall have the meaning set forth in
Section 3(t) hereof.
"Business Day" shall mean a day that is not a Saturday, a
Sunday, or a day on which banking institutions in New York, New
York or Wilmington, Delaware are authorized or required to be
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.
"Declaration" or "Declaration of Trust" shall mean the
Amended and Restated Declaration of Trust, dated as of June 6,
1997, among the trustees named therein, the Company as sponsor
and the Holders, from time to time, of the Trust Securities.
"Depository" 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, or any successor legislation
and the rules and regulations promulgated thereunder.
"Exchange Offer" shall mean the offer by the Company and
the Trust to the Holders to exchange all of the Registrable
Securities (other than Private Exchange Securities) for a like
principal or liquidation amount, as applicable, of Exchange
Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration
under the Securities Act effected pursuant to Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form), and all amendments and
supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in
Section 2(a) hereof.
"Exchange Securities" shall mean (i) with respect to the
Subordinated Debentures, the 9.27% Series B Junior Subordinated
Deferrable Interest Debentures due June 6, 2027 (the "Exchange
Debentures") containing terms identical to the Subordinated
Debentures (except that they will not contain terms with respect
to the transfer restrictions under the Securities Act and will
not provide for any increase in the interest rate thereon), (ii)
with respect to the Capital Securities, the Trust's 9.27%
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Series B Capital Securities, liquidation amount $1,000 per
Capital Security (the "Exchange Capital Securities") which will
have terms identical to the Capital Securities (except they will
not contain terms with respect to transfer restrictions under the
Securities Act and will not provide for any increase in the
Distribution rate thereon) and (iii) with respect to the Capital
Securities Guarantee, the Company's guarantee (the "Exchange
Capital Securities Guarantee") of the Exchange Capital Securities
which will have terms identical to the Capital Securities
Guarantee.
"Holder" shall mean the Initial Purchaser, for so long as
it owns any Registrable Securities, and 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
June 6, 1997 among the Company, as issuer, and The Chase
Manhattan Bank, as trustee, as the same may be amended from time
to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the
preamble to this Agreement.
"Inspectors" shall have the meaning set forth in Section
3(n) hereof.
"Issue Date" shall mean the date of original issuance of the
Securities.
"Majority Holders" shall mean the Holders of a majority of
the aggregate liquidation amount of outstanding Capital
Securities.
"Participating Broker-Dealer" shall have the meaning set
forth in Section 3(t) hereof.
"Person" shall mean a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"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.
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"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
posteffective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
hereof.
"Registrable Securities" shall mean the Securities and, if
issued, the Private Exchange Securities; provided, however, that
Securities or Private Exchange Securities, as the case may be,
shall cease to be Registrable Securities when (i) a Registration
Statement with respect to such Securities or Private Exchange
Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act
and such Securities or Private Exchange Securities, as the case
may be, shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities or Private Exchange Securities,
as the case may be, shall have been sold to the public pursuant
to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (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 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 counsel for any underwriters
or Holders in connection with blue sky qualification of any of
the Exchange Securities or Registrable Securities) and compliance
with the rules of the NASD, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus and
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any amendments or supplements thereto, and in preparing or
assisting in preparing, printing and distributing any
underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) the fees and
disbursements of counsel for the Company and of the independent
certified public accountants of the Company, including the
expenses of any "cold comfort" letters required by or incident to
such performance and compliance, (vi) the fees and expenses of
the Trustee, and any exchange agent or custodian, (vii) all fees
and expenses incurred in connection with the listing, if any, of
any of the Registrable Securities on any securities exchange or
exchanges, and (viii) the reasonable fees and expenses of any
special experts retained by the Company in connection with any
Registration Statement.
"Registration Statement" shall mean any registration
statement of the Company and the Trust which covers any of the
Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements
to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Rule 144(k) Period" shall mean the period of two years (or
such shorter period as may hereafter be referred to in Rule
144(k) under the Securities Act (or similar successor rule))
commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the
preamble to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth
in Section 2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set
forth in Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the 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
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the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(1)
hereof.
"Trustees" shall mean any and all trustees with respect to
(i) the Capital Securities under the Declaration, (ii) the
Subordinated Debentures under the Indenture and (iii) the Capital
Securities Guarantee.
2. Registration Under the Securities Act.
(a) Exchange Offer. To the extent not prohibited by
any applicable law or applicable interpretation of the staff of
the SEC, the Company and the Trust shall, for the benefit of the
Holders, at the Company's cost, use their reasonable best efforts
to (i) cause to be filed with the SEC within 180 days after June
6, 1997, an Exchange Offer Registration Statement on an
appropriate form under the Securities Act covering the Exchange
Offer, (ii) cause such Exchange Offer Registration Statement to
be declared effective under the Securities Act by the SEC not
later than the date which is 215 days after June 6, 1997, (iii)
commence the Exchange Offer promptly after effectiveness of the
Exchange Offer Registration Statement and (iv) keep such Exchange
Offer Registration Statement effective for not less than 20
Business Days (or longer if required by applicable law) after the
date notice of the Exchange Offer is mailed to the Holders. Upon
the effectiveness of the Exchange Offer Registration Statement,
the Company and the Trust shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable
each Holder eligible and electing to exchange Registrable
Securities for a like principal amount of Exchange Debentures or
a like liquidation amount of Exchange Capital Securities,
together with the Exchange Guarantee, as applicable (assuming
that such Holder is not an affiliate of the Company within the
meaning of Rule 405 under the Securities Act and is not a
broker-dealer tendering Registrable Securities acquired directly
from the Company for its own account, acquires the Exchange
Securities in the ordinary course of such Holder's business and
has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of a public
distribution of the Exchange Securities) to transfer such
Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and under
state securities or blue sky laws.
In connection with the Exchange Offer, the Company and
the Trust shall:
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(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 20 Business 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 Depository for the
Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York City time, on the
last Business Day of the Exchange Period, by sending to the
institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Securities delivered for exchange, and a
statement that such Holder is withdrawing his election to have
such Securities exchanged;
(v) notify each Holder that any Security not tendered by
such Holder in the Exchange Offer will remain outstanding and
continue to accrue interest or accumulate distributions, as the
case may be, but will not retain any rights under this Agreement
(except in the case of the Initial Purchaser and Participating
Broker-Dealers as provided herein); and
(vi) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
If the Initial Purchaser determines upon advice of its
outside counsel that it is not eligible to participate in the
Exchange Offer with respect to the exchange of Securities
constituting any portion of an unsold allotment in the initial
distribution, as soon as practicable upon receipt by the Company
and the Trust of a written request from the Initial Purchaser,
the Company and the Trust, as applicable, shall issue and deliver
to the Initial Purchaser in exchange (the "Private Exchange") for
the Securities held by the Initial Purchaser, a like liquidation
amount of Capital Securities of the Trust, together with the
Exchange Guarantee, or a like principal amount of the
Subordinated Debentures of the Company, as applicable, that are
identical (except that such securities may bear a customary
legend with respect to restrictions on transfer pursuant to the
Securities Act) to the Exchange Securities (the "Private Exchange
Securities") and which are issued pursuant to the Indenture, the
Declaration or the Guarantee (which provides that the Exchange
Securities will not be subject to the transfer restrictions set
forth in the Indenture or the Declaration, as applicable, and
that the Exchange Securities, the Private Exchange Securities and
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the Securities will vote and consent together on all matters as
one class and that neither the Exchange Securities, the Private
Exchange Securities nor the Securities will have the right to
vote or consent as a separate class on any matter). The Private
Exchange Securities shall be of the same series as the Exchange
Securities and the 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.
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
(iii) issue, and cause the applicable Trustee under the
Indenture, the Declaration or the Guarantee, as applicable, to
promptly authenticate and deliver to each Holder, new 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 to the Capital Securities (together with the guarantee
thereof) as are surrendered by such Holder.
Distributions as defined in the Declaration on each
Exchange Capital Security and interest on each Exchange Debenture
and Private Exchange Security issued pursuant to the Exchange
Offer and in the Private Exchange will accumulate or accrue, as
the case may be, from the last date on which a Distribution or
interest was paid on the Capital Security or the Subordinated
Debenture surrendered in exchange therefore or, if no
Distribution or interest has been paid on such Capital Security
or Subordinated Debenture, from the Issue Date. To the extent not
prohibited by any law or applicable interpretation of the staff
of the SEC, the Company and the Trust shall use their reasonable
best efforts to complete the Exchange Offer as provided above,
and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in
connection with the Exchange Offer. The Exchange Offer shall not
be subject to any conditions, other than that the Exchange Offer
does not violate applicable law or any applicable interpretation
of the staff of the SEC. Each Holder of Registrable Securities
who wishes to exchange such Registrable Securities for Exchange
Securities in the Exchange Offer will be required to make certain
customary representations in connection
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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 within the meaning of the Securities
Act, (ii) the Exchange Securities to be received by it were
acquired in the ordinary course of its business and (iii) at the
time of the Exchange Offer, it has no arrangement with any person
to participate in a public distribution (within the meaning of
the Securities Act) of the Exchange Capital Securities. The
Company and the Trust shall inform the Initial Purchaser, after
consultation with the Trustee, of the names and addresses of the
Holders to whom the Exchange Offer is made, and the Initial
Purchaser shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Securities in the
Exchange Offer.
Upon consummation of the Exchange Offer in accordance
with this Section 2(a), the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to
Registrable Securities that are Private Exchange Securities and
Exchange Securities held by Participating Broker-Dealers, and the
Company and the Trust shall have no further obligation to
register the Registrable Securities (other than Private Exchange
Securities) pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the
Company, the Trust or the Majority Holders reasonably determine,
after conferring with counsel (which may be in-house counsel),
that the Exchange Offer Registration provided in Section 2(a)
above is not available because of any change in law or in
currently prevailing interpretations of the staff of the SEC,
(ii) the Exchange Offer Registration Statement is not declared
effective within 215 days of June 6, 1997, (iii) a Tax
Contingency shall have occurred or (iv) upon the request of the
Initial Purchaser with respect to any Registrable Securities held
by it, if the Initial Purchaser is not permitted, in the
reasonable opinion of Xxxxx & Xxxx LLP, pursuant to applicable
law or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the
Securities Act and applicable blue sky or state securities laws
(any of the events specified in (i)-(iv) being a "Shelf
Registration Event" and the date of occurrence thereof, the
"Shelf Registration Event Date"), the Company and the Trust
shall, at their cost, use their reasonable best efforts to cause
to be filed as promptly as practicable after such Shelf
Registration Event Date, as the case may be, and, in any event,
within 45 days after such Shelf Registration Event Date (which
shall be no earlier than 150 days after the Closing Time), a
Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities other than, in the
case of subclause (iii) of this Section 2(b), Holders who have
tendered their Registrable Securities pursuant to Section 2(a)
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above, and shall use their reasonable best efforts to have such
Shelf Registration Statement declared effective by the SEC as
soon as practicable. No Holder of Registrable Securities shall be
entitled to include any of its Registrable Securities in any
Shelf Registration pursuant to this Agreement unless and until
such Holder 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.
In addition, the Company and the Trust may, in lieu of
filing an Exchange Offer Registration Statement, file a Shelf
Registration Statement if the Company receives an opinion of
legal counsel that, as a result of the consummation of the
Exchange Offer, there is more than an insubstantial risk that (x)
the Trust would be subject to United States federal income tax
with respect to income received or accrued on the Subordinated
Debentures or the Exchange Debentures, (y) interest payable by
the Company on such Subordinated Debentures or the Exchange
Debentures would not be deductible by the Company, in whole or in
part, for United States federal income tax purposes, or (z) the
Trust would be subject to more than a de minimis amount of other
taxes, duties or governmental charges, receipt of such opinion
being a "Tax Contingency".
The Company and the Trust agree to use their
reasonable best efforts to keep the Shelf Registration Statement
continuously effective for the Rule 144(k) Period (subject to
extension pursuant to the last paragraph of Section 3 hereof) or
for such shorter period which will terminate when all of the
Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration
Statement or cease to be outstanding (the "Effectiveness
Period"). The Company and the Trust shall not permit any
securities other than Registrable Securities to be included in
the Shelf Registration. The Company and the Trust will, in the
event a Shelf Registration Statement is declared effective,
provide to each Holder a reasonable number of copies of the
Prospectus which is a part of the Shelf Registration Statement,
notify each such Holder when the Shelf Registration has become
effective and use its best efforts to take certain other actions
as are required to permit certain unrestricted resales of the
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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 shall pay all Registration
Expenses in connection with the registration pursuant to Section
2(a) or 2(b) hereof and will reimburse the Initial Purchaser for
the reasonable fees and disbursements of Xxxxx & Wood LLP,
counsel for the Initial Purchaser, incurred in connection with
the Exchange Offer and, if applicable, the Private Exchange
Offer, and either Xxxxx & Xxxx LLP or any one other counsel
designated in writing by the Majority Holders to act as counsel
for the Holders of the Registrable Securities in connection with
a Shelf Registration Statement, which other counsel shall be
reasonably satisfactory to the Company. 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 a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court,
such Registration Statement will be deemed not to have been
effective during the period of such interference, until the
offering of Registrable Securities pursuant to such Registration
Statement may legally resume. The Company and the Trust will be
deemed not to have used their reasonable best efforts to cause
the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to
remain, effective during the requisite period if either of them
voluntarily takes any action that would result in any such
Registration Statement not being declared effective or in the
Holders of Registrable Securities covered thereby not being able
to exchange or offer and sell such Registrable Securities during
that period unless such action is required by applicable law.
(e) Additional Distributions. In the event that
(i) (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is filed with the SEC on or prior to
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the 180th day (or the 210th day, in the event of a Tax
Contingency) after June 6, 1997 or (B) notwithstanding that the
Company and the Trust have accepted for exchange or will accept
for exchange the Subordinated Debentures, the Capital Securities
and the Capital Securities Guarantee for, respectively, the
Exchange Debentures, the Exchange Capital Securities and the
Exchange Capital Securities Guarantee, the Company and the Trust
are required to file a Shelf Registration Statement and such
Shelf Registration Statement is not filed on or prior to the date
required by Section 2(b) hereof, then commencing on the day after
the applicable required filing date, additional interest shall
accrue on the principal amount of the Subordinated Debentures,
and additional Distributions shall accumulate on the liquidation
amount of the Capital Securities, each at a rate of .50% per
annum; or
(ii) (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is declared effective by the
SEC on or prior to the 35th day after the applicable required
filing date or (B) notwithstanding that the Company and the Trust
have accepted for exchange the Subordinated Debentures, the
Capital Securities and the Capital Securities Guarantee for,
respectively, the Exchange Debentures, the Exchange Capital
Securities and the Exchange Capital Securities Guarantee, the
Company and the Trust are required to file a Shelf Registration
Statement and such Shelf Registration Statement is not declared
effective by the SEC on or prior to the 35th day after the date
such Shelf Registration Statement was required to be filed, then,
commencing on the 36th day after the applicable required filing
date, additional interest shall accrue on the principal amount of
the Subordinated Debentures, and additional Distributions shall
accumulate on the liquidation amount of the Capital Securities,
each at a rate of .50% per annum; or
(iii) (A) the Trust has not accepted for exchange all
validly tendered Capital Securities for Exchange Capital
Securities or the Company has not accepted for exchange the
Capital Securities Guarantee and all Subordinated Debentures for
the Exchange Guarantee and Exchange Debentures respectively, in
accordance with the terms of the Exchange Offer on or prior to
the 35th day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) if
applicable, the Shelf Registration Statement has been declared
effective and such Shelf Registration Statement ceases to be
effective at any time prior to the expiration of the Rule 144(k)
Period (other than after such time as all Capital Securities have
been disposed of thereunder or otherwise cease to be Registrable
Securities), then additional interest shall accrue on the
principal amount of Subordinated Debentures, and additional
Distributions shall accumulate on the liquidation amount of the
Capital Securities, each at a rate of .50% per annum commencing
on (x) the 36th day after such effective date, in the case of
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(A) above, or (y) the day such Shelf Registration Statement
ceases to be effective in the case of (B) above;
provided, however, that neither the additional interest rate on
the Subordinated Debentures, nor the additional distribution rate
on the liquidation amount of the Capital Securities, may exceed
in the aggregate .50% 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 acceptance for
exchange of all validly tendered Capital Securities, the
Guarantee and Subordinated Debentures for all Exchange Capital
Securities, the Exchange Capital Securities Guarantees and
Exchange Debentures (in the case of clause (iii)(A) above), or
upon the effectiveness of the Shelf Registration Statement which
had ceased to remain effective or the completion of the Rule
144(k) period (in the case of clause (iii)(B) above), additional
interest on the Subordinated Debentures, and additional
Distributions on the liquidation amount of the Capital Securities
as a result of such clause (or the relevant subclause thereof),
as the case may be, shall cease to accrue or accumulate, as the
case may be.
Any amounts of additional interest and additional
Distributions due pursuant to Section 2(e)(i), (ii) or (iii)
above (the "Additional Distributions") will be payable in cash on
June 6 and December 6 of each year to the holders of record on
the 15th day prior to the relevant payment date.
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 reasonable 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 (iii) shall comply as to form in all material respects
with the requirements of the applicable form and include
all financial statements required by the SEC to be filed
therewith; and use its reasonable best efforts to cause
such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof; provided,
however, that if (1) such filing is pursuant to Section
13
2(b), or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange
Securities, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the
Company and the Trust shall furnish to and afford the
Holders of the Registrable Securities and each such
Participating Broker-Dealer, as the case may be, covered by
such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review
copies of all such documents (including copies of any
documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed. The Company and the
Trust shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in
respect of which the Holders must be afforded an
opportunity to review prior to the filing of such document
if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the
managing underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement
effective for the Effectiveness Period or the Applicable
Period, as the case may be; and cause each Prospectus to be
supplemented, if so determined by the Company or the Trust
or requested by the SEC, by any required prospectus
supplement and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the
Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with
respect to the disposition of all securities covered by
each Registration Statement during the Effectiveness Period
or the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify
each Holder of Registrable Securities included in the Shelf
Registration Statement, at least three Business Days prior
to filing, that a Shelf Registration Statement with respect
to the Registrable Securities is being filed and advising
such Holder that the distribution of Registrable Securities
will be made in accordance with the method selected by the
Majority Holders; 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,
14
as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate
the public sale or other disposition of the Registrable
Securities; and (iii) consent to the use of the Prospectus
or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities included in the
Shelf Registration Statement in connection with the
offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, use their
reasonable best efforts to register or qualify the
Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions by the
time the applicable Registration Statement is declared
effective by the SEC as any Holder of Registrable
Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable
Securities shall reasonably request in writing in advance
of such date of effectiveness, and do any and all other
acts and things which may be reasonably necessary or
advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided,
however, that the 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) in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers from whom the Company or the
Trust has received prior written notice that they will be
utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof,
are seeking to sell Exchange Securities and are required to
deliver Prospectuses, notify each Holder of Registrable
Securities, or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters,
if any, promptly and promptly confirm such notice in
writing (i) when a Registration Statement has become
effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request
by the SEC or any state securities authority for amendments
and supplements to a Registration Statement or Prospectus
or for additional information after the Registration
Statement has become effective, (iii) of the issuance by
the SEC or any state
15
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, if
any cease to be true and correct in all material respects,
and (v) of the happening of any event or the failure of any
event to occur or the discovery of any facts or otherwise,
during the Effectiveness Period which makes any statement
made in such Registration Statement or the related
Prospectus untrue in any material respect or which causes
such Registration Statement or Prospectus to omit to state
a material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading, and (vi) the Company and the Trust's
reasonable determination that a post-effective amendment to
the Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities included within the
coverage of such Shelf Registration Statement, without
charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
and not bearing any restrictive legends and in such
denominations (consistent with the provisions of the
Indenture and the Declaration) and registered in such names
as the selling Holders or the underwriters may reasonably
request at least two Business Days prior to the closing of
any sale of Registrable Securities pursuant to such Shelf
Registration Statement;
(i) in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
16
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, use its reasonable best efforts to prepare
a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document
incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus
will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and to notify each
Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until
the Company has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable
time prior to the filing of any document which is to be
incorporated by reference into a Registration Statement or
a Prospectus after the initial filing of a Registration
Statement, provide a reasonable number of copies of such
document to the Holders; and make such of the
representatives of the Company and the Trust as shall be
reasonably requested by the Holders of Registrable
Securities or the Initial Purchaser on behalf of such
Holders available for discussion of such document;
(k) obtain a CUSIP number for all Exchange Capital
Securities and the Capital Securities (and if the Trust has
made a distribution of the Subordinated Debentures to the
Holders of the Capital Securities, the Subordinated
Debentures or the Exchange Subordinated Debentures), as the
case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with
printed certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form
eligible for deposit with the Depository;
(l) cause the Indenture, the Declaration, the
Guarantee and the Exchange Guarantee to be qualified under
the Trust Indenture Act of 1939 (the "TIA") in connection
with the registration of the Exchange Securities or
Registrable Securities, as the case may be, and effect such
changes to such documents as may be required for them to be
so qualified in accordance with the terms of the TIA and
execute, and use its reasonable best efforts to cause the
relevant trustee to execute, all documents as may be
required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such
documents to be so qualified in a timely manner;
17
(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 as are reasonably requested in order to
expedite or facilitate the registration or the disposition
of such Registrable Securities, and in such connection,
whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten
registration, if requested by (x) the Initial Purchaser, in
the case where the Initial Purchaser holds Securities
acquired by it as part of its initial distribution and (y)
other Holders of Securities covered thereby: (i) make such
representations and warranties to Holders of such
Registrable Securities and the underwriters (if any), with
respect to the business of the Trust, the Company and its
subsidiaries as then conducted and the Registration
Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company
and the Trust and updates thereof (which may be in the form
of a reliance letter) in form and substance reasonably
satisfactory to the managing underwriters (if any) and the
Holders of a majority in principal amount of the
Registrable Securities being sold, addressed to each
selling Holder and the underwriters (if any) covering the
matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such underwriters (it being agreed
that the matters to be covered by such opinion may be
subject to customary qualifications and exceptions); (iii)
obtain "cold comfort" letters and updates thereof in form
and substance reasonably satisfactory to the managing
underwriters from the independent certified public
accountants of the Company and the Trust (and, if
necessary, any other independent certified public
accountants of any subsidiary of the Company and the Trust
or of any business acquired by the Company and the Trust
for which financial statements and financial data are, or
are required to be, included in the Registration
Statement), addressed to each of the underwriters, such
letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in
connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in
accordance with Statement on Auditing Standards No. 72; and
(iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no
less favorable than those set forth in Section 4 hereof (or
such other provisions and procedures acceptable to Holders
of a majority in aggregate principal amount of Registrable
Securities covered by such
18
Registration Statement and the managing underwriters or
agents) with respect to all parties to be indemnified
pursuant to said Section (including, without limitation,
such underwriters and selling Holders). The above shall be
done at each closing under such underwriting agreement, or
as and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a)
is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, make reasonably
available for inspection by any selling Holder of such
Registrable Securities being sold, or each such
Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney,
accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the
case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Trust,
the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them
to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the
Trust, the Company and its subsidiaries to supply all
relevant information in each case reasonably requested by
any such Inspector in connection with such Registration
Statement provided, however, that the foregoing inspection
and information gathering shall be coordinated on behalf of
the Purchasers by the Initial Purchaser and on behalf of
the other parties, by one counsel designated by the Initial
Purchaser and on behalf of such other parties as described
in Section 2(c) hereof. Records which the Company and the
Trust determine, in good faith, to be confidential and any
records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct
a material misstatement or omission in such Registration
Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of
competent jurisdiction or is necessary in connection with
any action, suit or proceeding or (iii) the information in
such Records has been made generally available to the
public without and not in breach of an obligation of
confidentiality. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will
be required to agree in writing that information obtained
by it as a result of such inspections shall be deemed
confidential and shall not be
19
used by it as the basis for any market transactions in the
securities of the Trust or the Company unless and until
such is made generally available to the public. Each
selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to further
agree in writing that it will, upon learning that
disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and
allow the Company at its expense to undertake appropriate
action to prevent disclosure of the Records deemed
confidential;
(o) comply with all applicable rules and regulations
of the SEC so long as any provision of this Agreement shall
be applicable and make generally available to its
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;
(p) 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, and which includes an opinion
that (i) the Company and the Trust, as the case requires,
has duly authorized, executed and delivered the Exchange
Securities and Private Exchange Securities, and (ii) each
of the Exchange Securities or the Private Exchange
Securities, as the case may be, constitute a legal, valid
and binding obligation of the Company or the Trust, as the
case requires, enforceable against the Company or the
Trust, as the case requires, in accordance with its
respective terms (in each case, with customary exceptions);
(q) if an Exchange Offer 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
xxxx, or cause to be marked, on such Registrable Securities
delivered by such
20
Holders that such Registrable Securities are being
cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no
event shall such Registrable Securities be marked as paid
or otherwise satisfied;
(r) cooperate with each seller of Registrable
Securities covered by any Registration Statement and each
underwriter, if any, participating in the disposition of
such Registrable Securities and their respective counsel in
connection with any filings required to be made with the
NASD;
(s) use its reasonable best efforts to take all other
steps necessary to effect the registration of the
Registrable Securities covered by a Registration Statement
contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution", which
section shall be reasonably acceptable to the Initial
Purchaser or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement
of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of
any broker-dealer (a "Participating Broker-Dealer") that
holds Registrable Securities acquired for its own account
as a result of market-making activities or other trading
activities and that will be the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities to be received by such broker-dealer in the
Exchange Offer, whether such positions or policies have
been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the
Initial Purchaser or such other representative, represent
the prevailing views of the staff of the SEC, including a
statement that any such broker-dealer who receives Exchange
Securities for Registrable Securities pursuant to the
Exchange Offer may be deemed a statutory underwriter and
must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating
Broker-Dealer who has delivered to the 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
21
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 its reasonable
best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject
to the prospectus delivery requirements of the Securities
Act for such period of time as such Persons must comply
with such requirements under the Securities Act and
applicable rules and regulations in order to resell the
Exchange Securities; provided, however, that such period
shall not be required to exceed 90 days (or such longer
period if extended pursuant to the last sentence of Section
3 hereof) (the "Applicable Period"), and (iv) include in
the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in
the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as
a result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with
any resale of Exchange Securities received in respect
of such Registrable Securities pursuant to the
Exchange Offer";
and (y) a statement to the effect that by a broker-dealer
making the acknowledgment described in clause (x) and by
delivering a Prospectus in connection with the exchange of
Registrable Securities, the broker-dealer will not be
deemed to admit that it is an underwriter within the
meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company and the Trust agree to deliver to
the Initial Purchaser or to another representative of the
Participating Broker-Dealers, if requested by the Initial
Purchaser or such other representative of the Participating
Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (i)
an opinion of counsel in form and substance reasonably
satisfactory to the Initial Purchaser or such other
representative of the Participating Broker-Dealers,
covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration
Statements and such other matters as may be reasonably
requested (it being
22
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(g) 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 (1) a Shelf Registration Statement or
(2) Participating Broker-Dealers who have notified the Company
and the Trust that they will be utilizing the Prospectus
contained in the Exchange Offer Registration Statement as
provided in Section 3(t) hereof, are seeking to sell Exchange
Securities and are required to deliver the Prospectus each Holder
agrees that, upon receipt of any notice from the Company or the
Trust of the happening of any event of the kind described in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(i) hereof or until it is
advised in writing (the "Advice") by the Company and the Trust
that the use of the applicable Prospectus may be resumed, and, if
so directed by the Company and the Trust, such Holder will
deliver to the Company or the Trust (at the Company's or the
Trust's expense, as the case requires) all copies in such
Holder's possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such
Registrable Securities or Exchange Securities, as the case may
be, current at the time of receipt of such notice. If the Company
or the Trust shall give any such notice to suspend the
disposition of Registrable Securities or Exchange Securities, as
the case may be, pursuant to a Registration Statement, the
Company and the Trust shall use their reasonable best efforts to
file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to the Registration
Statement and shall extend the period during which such
23
Registration Statement shall be maintained effective pursuant to
this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including
the date when the Company and the Trust shall have made available
to the Holders (x) copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (y) the
Advice.
4. Indemnification and Contribution. In connection
with any Registration Statement, the Company and the Trust shall,
jointly and severally, indemnify and hold harmless the Initial
Purchaser, each Holder, each underwriter who participates in an
offering of the Registrable Securities, each Participating
Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and each of their respective
directors, officers, employees and agents, as follows:
(i) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as
incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto), covering
Registrable Securities or Exchange Securities, including
all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as
incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or
proceeding by any court or governmental agency or body,
commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is
effected with the prior written consent of the Company; and
(iii) from and against any and all expenses
whatsoever, as incurred (including reasonable fees and
disbursements of counsel chosen by such Holder, such
Participating Broker-Dealer, or any underwriter (except to
the extent otherwise expressly provided in Section 4(c)
hereof)), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation
or proceeding
24
by any court or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section
4(a);
provided, however, that (i) this indemnity does not apply to any
loss, liability, claim, damage or expense to the extent arising
out of an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished in writing to the Company or
the Trust by such Holder, such Participating Broker-Dealer or any
underwriter with respect to such Holder, Participating
Broker-Dealer or any underwriter, as the case may be, expressly
for use in the Registration Statement (or any amendment thereto)
or any Prospectus (or any amendment or supplement thereto) and
(ii) the Company and the Trust shall not be liable to any such
Holder, Participating Broker-Dealer, any underwriter or
controlling person, with respect to any untrue statement or
alleged untrue statement or omission or alleged omission in any
preliminary Prospectus to the extent that any such loss,
liability, claim, damage or expense of any Holder, Participating
Broker-Dealer, any underwriter or controlling person results from
the fact that such Holder, any underwriter or Participating
Broker-Dealer sold Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such
sale, a copy of the final Prospectus as then amended or
supplemented if the Company had previously furnished copies
thereof to such Holder, underwriter or Participating
Broker-Dealer and the loss, liability, claim, damage or expense
of such Holder, underwriter, Participating Broker-Dealer or
controlling person results from an untrue statement or omission
of a material fact contained in the preliminary Prospectus which
was corrected in the final Prospectus. Any amounts advanced by
the Company or the Trust to an indemnified party pursuant to this
Section 4 as a result of such losses shall be returned to the
Company or the Trust if it shall be finally determined by such a
court in a judgment not subject to appeal or final review that
such indemnified party was not entitled to indemnification by the
Company or the Trust.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Trust, any
underwriter and the other selling Holders and each of their
respective directors, officers (including each officer of the
Company and the Trust who signed the Registration Statement),
employees and agents and each Person, if any, who controls the
Company, the Trust, any underwriter or any other selling Holder
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, from and against any and all loss,
liability, claim, damage and expense whatsoever described in the
25
indemnity contained in Section 4(a) hereof, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company or the Trust by such
selling Holder with respect to such Holder expressly for use in
the Registration Statement (or any amendment thereto), or any
such Prospectus (or any amendment or supplement thereto);
provided, however, that, in the case of Shelf Registration
Statement, no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by
such Holder from the sale of Registrable Securities pursuant to
such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, enclosing a
copy of all papers properly served on such indemnified party, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have under
this Section 4, except to the extent that it is materially
prejudiced by such failure. An indemnifying party may participate
at its own expense in the defense of such action. If an
indemnifying party so elects within a reasonable time after
receipt of such notice, an indemnifying party, severally or
jointly with any other indemnifying parties receiving such
notice, may assume the defense of such action with counsel chosen
by it and reasonably acceptable to the indemnified parties
defendant in such action, provided, however, that if (i)
representation of such indemnified party by the same counsel
would present a conflict of interest or (ii) the actual or
potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and any
such indemnified party reasonably determines that there may be
legal defenses available to such indemnified party which are
different from or in addition to those available to such
indemnifying party, then in the case of clauses (i) and (ii) of
this Section 4(c) such indemnifying party and counsel for each
indemnifying party or parties shall not be entitled to assume
such defense of such action. If an indemnifying party is not
entitled to assume the defense of such action as a result of the
proviso to the preceding sentence, counsel for such indemnifying
party and counsel for each indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of such
action, in accordance with and as permitted by the provisions of
this paragraph, such indemnifying parties shall not be liable for
any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event
shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to local counsel),
26
separate from its own counsel, for-all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or not
the indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an
unconditional written release in form and substance satisfactory
to the indemnified parties of each indemnified party from all
liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Notwithstanding the last sentence of Section 4(c),
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for
reasonable fees and expenses of counsel pursuant to Section
4(a)(iii) above, such indemnifying party agrees that it shall be
liable for any settlement 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 reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; provided that an
indemnifying party shall not be liable for any such settlement
effected without its consent if such indemnifying party (1)
reimburses such indemnified party in accordance with such request
to the extent it considers reasonable and (2) provides written
notice to the indemnified party substantiating the unpaid balance
as unreasonable, in each case 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 unavailable to the indemnified parties 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 that no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the 0000 Xxx) shall be entitled to contribution from any
Person that was not guilty of such fraudulent misrepresentation.
27
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 director, officer, employee, agent and Person,
if any, who controls a Holder or such affiliate within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such
Holder, and each director of each of the Company or the Trust,
each officer of each of the Company or the Trust who signed the
Registration Statement, and each Person, if any, who controls
each of the Company and the Trust within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as each of the Company or
the Trust.
5. Participation in Underwritten Registrations. No
Holder may participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably
required under the terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of
Registrable Securities covered by the Shelf Registration
Statement who desire to do so may sell the securities covered by
such Shelf Registration in an underwritten offering. In any such
underwritten offering, the underwriter or underwriters and
manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal
28
amount of the Registrable Securities included in such offering;
provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company and the Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company
or the Trust is subject to the reporting requirements of Section
13 or 15 of the Exchange Act and any Registrable Securities
remain outstanding, each of the Company and the Trust will use
its best efforts to file the reports required to be filed by it
under the Securities Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC
thereunder, that if it ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is
necessary to permit sales of their securities pursuant to Rule
144 under the Securities Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales of their
securities pursuant to Rule 144A under the Securities Act and it
will take such further action as any Holder of Registrable
Securities may reasonably request, and (c) take such further
action that is reasonable in the circumstances, in each case, to
the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided
by (i) Rule 144 under the Securities Act, as such rule may be
amended from time to time, (ii) Rule 144A under the Securities
Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon
the request of any Holder of Registrable Securities, the Company
and the Trusts will deliver to such Holder a written statement as
to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company or the
Trust has not entered into nor will the Company or the Trust on
or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the
Company's or the Trust's other issued and outstanding securities
under any such agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company and the Trust has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment,
29
modification, supplement, waiver or departure; provided 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 Initial Purchaser, to cure any
ambiguity, correct or supplement any provision of this Agreement
that may be inconsistent with any other provision of this
Agreement or to make any other provisions with respect to matters
or questions arising under this Agreement which shall not be
inconsistent with other provisions of this Agreement, (ii) this
Agreement may be amended, modified or supplemented, and waivers
and consents to departures from the provisions hereof may be
given, by written agreement signed by the Company, the Trust and
Initial Purchaser to the extent that any such amendment,
modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with
applicable law (including any interpretation of the Staff of the
SEC) or any change therein and (iii) to the extent any provision
of this Agreement relates to the Initial Purchaser, such
provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by
written agreement signed by Initial Purchaser, the Company and
the Trust.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or
any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to the Company
or the Trust by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with
respect to the Initial 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
30
giving the same to the Trustee, at the address specified in the
Indenture.
(e) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and
transferees of the Initial Purchaser, including, without
limitation and without the need for an express assignment,
subsequent Holders; provided, however, that nothing herein shall
be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities,
such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the
benefits hereof.
(f) Third Party Beneficiary. The Initial Purchaser
shall be a third party beneficiary of the agreements made
hereunder between the Company and the Trust, on the one hand, and
the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND
INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS
SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
31
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Securities Held by the Company, the Trust or its
Affiliates. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company, the Trust
or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
32
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
ALBANK FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
ALBANK CAPITAL TRUST I
By: ALBANK FINANCIAL CORPORATION,
as Sponsor
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Administrator
Confirmed and accepted as of
the date first above
written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
