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EXHIBIT 4.8
BSB CAPITAL TRUST I
$30,000,000 8.125% CAPITAL SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
BSB BANCORP, INC.
REGISTRATION RIGHTS AGREEMENT
New York, New York
July 24, 1998
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Two World Trade Center
New York, New York 10048
Dear Sirs:
BSB Capital Trust I (the "Trust"), a statutory business trust formed
under the laws of the state of Delaware by BSB Bancorp, Inc. (the "Company"),
proposes to issue and sell to you, as the Initial Purchaser (the "Initial
Purchaser") named in the Purchase Agreement of even date herewith (the
"Purchase Agreement"), $30,000,000 aggregate liquidation amount of 8.125%
Capital Securities (liquidation amount $1,000 per Capital Security) (the
"Capital Securities") of the Trust. The issuance and sale of the Capital
Securities pursuant to the Purchase Agreement is referred to herein as the
"Initial Placement." The Capital Securities, together with the guarantee of
the Company with respect thereto (the "Guarantee") and the 8.125% Junior
Subordinated Deferrable Interest Debentures of the Company (the "Junior
Subordinated Debentures"), are collectively referred to herein as the
"Registrable Securities." As an inducement to the Initial Purchaser to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Initial Purchaser thereunder, the Company and the Trust
agree with you, (i) for your benefit as Initial Purchaser and (ii) for the
benefit of the holders from time to time of the Registrable Securities and the
Exchange Securities (as defined below), including the Initial Purchaser (each
of the foregoing a "Holder" and together the "Holders"), 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:
"Additional Interest" has the meaning set forth in Section 3(c) hereof.
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"Affiliate" of any specified person means any other person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Securities" has the meaning set forth in the preamble hereto.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"DTC" means the Depository Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Prospectus" means the Prospectus contained in the Exchange
Offer Registration Statement, as it may be amended or supplemented from time to
time.
"Exchange Offer Registration Period" means the one-year 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, or the Company otherwise fails to
maintain continuous effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement of the
Company and the Trust on an appropriate form under the Securities Act with
respect to the Registered Exchange Offer, 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 Securities" means the securities of the Company and the Trust issued
pursuant to a Registered Exchange Offer in the same aggregate principal amount
or in the same number or liquidation amount, as the case may be, and containing
terms that are identical in all material respects to the terms of the
Registrable Securities except (i) the Exchange Securities shall have been
registered for sale under the Securities Act to Holders and (ii) the interest
rate step-up provisions and the transfer restrictions under the Securities Act
in the Registrable Securities will be modified or eliminated, as appropriate,
in the Exchange Securities.
"Exchanging Dealer" means any Holder (which may include the Initial Purchaser)
which is a broker-dealer electing to exchange Registrable Securities, acquired
for its own account as a result of market-making activities or other trading
activities, for Exchange Securities.
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"Final Offering Memorandum" means the final Offering Memorandum issued in
connection with the Initial Placement and dated as of July 21, 1998 relating to
the Registrable Securities.
"Guarantee" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchaser" has the meaning set forth in the preamble hereto.
"Interest Payment Date" has the meaning set forth in Section 3(c) hereof.
"Letter of Transmittal" has the meaning set forth in Section 2(c)(i) hereof.
"Managing Underwriters" means the investment banker or investment bankers and
manager or managers that shall administer an underwritten offering.
"New Capital Securities" has the meaning set forth in Section 2(e) hereof.
"New Guarantee" has the meaning set forth in Section 2(e) hereof.
"New Junior Subordinated Debentures" has the meaning set forth in Section 2(e)
hereof.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, 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 Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities or the Exchange
Securities, covered by such Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Registered Exchange Offer" means the offer to the Holders to issue and deliver
to such Holders, in exchange for the Registrable Securities, a like principal
amount, stated liquidation amount or number, as the case may be, of the
Exchange Securities.
"Registrable Securities" has the meaning set forth in the preamble hereto.
"Registration Default" has the meaning set forth in Section 3(c) hereof.
"Registration Statement" means any Exchange Offer Registration Statement or
Shelf Registration Statement that covers any of the Registrable Securities or
the Exchange Securities pursuant to the provisions of this Agreement,
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.
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"Securities Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to Section 3
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration statement of the
Company and the Trust pursuant to the provisions of Section 3 hereof which
covers some or all of the Registrable Securities or Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the Commission, 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.
"Transfer Restricted Securities" has the meaning set forth in Section 3(c)
hereof.
"Trust" has the meaning set forth in the preamble hereto.
"Underwriter" means any underwriter of Registrable Securities or Exchange
Securities in connection with an offering thereof under a Shelf Registration
Statement.
2. Registered Exchange Offer; Resales of Exchange Securities by
Exchanging Dealers; Private Exchange.
(a) Except as otherwise provided herein, the Company and the Trust
shall prepare and, not later than 150 days following the
Closing Date, shall file with the Commission the Exchange
Offer Registration Statement with respect to the Registered
Exchange Offer. The Company and the Trust shall use their
reasonable best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the
Securities Act within 180 days of the Closing Date. The
Company and the Trust shall use their reasonable best efforts
to consummate the Registered Exchange Offer within 210 days of
the Closing Date.
(b) Upon the date the Exchange Offer Registration Statement is
declared effective, the Company and the Trust shall promptly
commence the Registered Exchange Offer, it being the objective
of such Registered Exchange Offer to enable each Holder
electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder is not an affiliate of
the Company within the meaning of the Securities Act, acquires
the Exchange Securities in the ordinary course of such
Holder's business, is not a broker-dealer tendering
Registrable Securities acquired directly from the Company, and
has no arrangements with any person to participate in a public
distribution (within the meaning of the Securities Act) of the
Exchange Securities) to trade such Exchange Securities from
and after their receipt without any limitations or
restrictions under the Securities Act and without material
restrictions under the securities laws of a substantial
proportion of the
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several states of the United States (other than requiring
minimum transfers in blocks having an aggregate liquidation
preference of $100,000).
(c) In connection with the Registered Exchange Offer, the Company
and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal
(the "Letter of Transmittal") and related documents;
(ii) keep the Registered Exchange Offer open for not less
than 30 days (or longer if required by applicable
law) after the date notice thereof is mailed to the
Holders;
(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 material respects with all applicable
laws relating to the Exchange Offer.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and the Trust shall:
(i) accept for exchange and cancel all Registrable
Securities tendered and not validly withdrawn
pursuant to the Registered Exchange Offer;
(ii) issue Exchange Securities to each tendering Holder in
a principal amount, stated liquidation amount or
number, as the case may be, equal to the Registrable
Securities accepted for exchange and canceled
pursuant to the Registered Exchange Offer; and
(iii) issue Exchange Securities to the Initial Purchaser at
its request in exchange for Registrable Securities
acquired by it as part of the Initial Placement
containing terms that are identical to the Exchange
Securities issued to Holders in the Registered
Exchange Offer (except that such Exchange Securities
may contain the transfer restrictions contained in
the Registrable Securities for which they are
exchanged) and use reasonable best effort to cause
the CUSIP Service Bureau to issue the same CUSIP
number for such Exchange Securities as is issued for
the Exchange Securities issued in the Registered
Exchange Offer.
(e) The Company, the Trust and the Initial Purchaser on behalf of
the Holders hereby acknowledge that, in order to effect a
Registered Exchange Offer and to comply with clause (d)(iii)
above, (i) the Company will be required to issue new junior
subordinated debentures ("New Junior Subordinated Debentures")
to the Trust in exchange for a like principal amount of Junior
Subordinated Debentures and
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(ii) the Trust will be required to issue new capital
securities ("New Capital Securities") in exchange for a like
amount of stated liquidation amount of Capital Securities.
The parties hereto acknowledge that the Guarantee by its
express terms covers the New Capital Securities as well as the
Capital Securities. The parties hereto further acknowledge
that the New Junior Subordinated Debentures, the New Capital
Securities and the guarantee issuable as described in this
paragraph (the "New Guarantee"), which collectively constitute
the Exchange Securities, shall be identical in all material
respects to the securities they replace, except that (x) such
Exchange Securities issued pursuant to the Exchange Offer
shall be registered for sale under the Securities Act to
Holders and (y) the interest rate step-up provisions and the
transfer restrictions under the Securities Act in the
securities being replaced by the Exchange Securities will be
modified and eliminated, as appropriate, in the Exchange
Securities.
(f) The Initial Purchaser, the Company and the Trust acknowledge
that, pursuant to current interpretations by the staff of the
Commission of Section 5 of the Securities Act, and in the
absence of an applicable exemption therefrom, each Exchanging
Dealer may be deemed an "underwriter" within the meaning of
the Securities Act and, therefore, is required to deliver a
Prospectus in connection with any resales of any Exchange
Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Registrable
Securities acquired for its own account as a result of
market-making activities or other trading activities.
Accordingly, the Company and the Trust shall:
(i) include the information set forth in (A) Annex A
hereto, on the cover of the Prospectus forming a part
of the Exchange Offer Registration Statement, (B)
Annex B hereto, in the forepart of the Prospectus
forming a part of the Exchange Offer Registration
Statement in a section setting forth details of the
Exchange Offer, (C) Annex C hereto, in the
underwriting or plan of distribution section of the
Prospectus forming a part of the Exchange Offer
Registration Statement, and such other information
with respect to resales of the Exchange Securities by
Exchanging Dealers that the Commission may require in
connection therewith, and (D) Annex D hereto, in the
Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and
(ii) use their reasonable best efforts to keep the
Exchange Offer Registration Statement continuously
effective under the Securities Act during the
Exchange Offer Registration Period for delivery by
Exchanging Dealers in connection with sales of
Exchange Securities received pursuant to the
Registered Exchange Offer, as contemplated by Section
4(i) hereof.
3. Shelf Registration. If (i) the Company, the Trust or the holders of a
majority of the aggregate liquidation amount of outstanding Capital
Securities are not required to file the Exchange Offer Registration
Statement or permitted to consummate the Registered
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Exchange Offer because the Registered Exchange Offer is not permitted
by applicable law or Commission policy, (ii) the Initial Purchaser so
requests with respect to Registrable Securities held by it following
consummation of the Registered Exchange Offer that are not "freely
tradable" Exchange Securities, (iii) the Company has received an
opinion of counsel, rendered by a law firm having a recognized
national tax practice, to the effect that, as a result of the
consummation of the Registered 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 Junior Subordinated Debentures or New Junior Subordinated
Debentures, (y) interest payable by the Company on such Junior
Subordinated Debentures or New Junior Subordinated 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 other
governmental charges, (iv) any holder of Transfer Restricted
Securities notifies the Company and the Trust on or before the 20th
business day following the consummation of the Registered Exchange
Offer that (A) it is prohibited by law or Commission policy from
participating in the Registered Exchange Offer, (B) it may not resell
the New Capital Securities, the New Guarantee and the New Junior
Subordinated Debentures acquired by it in the Registered Exchange
Offer to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales or (C) it is a broker-dealer
and owns Capital Securities acquired directly from the Trust or an
affiliate of the Trust, or (v) any Holder that is a broker-dealer, is
not an affiliate of the Company or the Trust and is not eligible to
participate in the Registered Exchange Offer so requests with respect
to Registrable Securities held by it following the consummation of the
Registered Exchange Offer that are not "freely tradable" Exchange
Securities (it being understood that, for purposes of this Section 3,
(x) the requirement that the Initial Purchaser deliver a Prospectus
containing the information required by Items 507 and/or 508 of
Regulation S-K under the Securities Act in connection with sales of
Exchange Securities acquired in exchange for such Registrable
Securities shall result in such Exchange Securities being not "freely
tradable" but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in
the Registered Exchange Offer in exchange for Registrable Securities
acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not
"freely tradable"), the following provisions shall apply:
(a) The Company and the Issuer Trust will use their reasonable
best efforts to file the Shelf Registration Statement with the
Commission on or prior to 150 days after any occurrence
described in clauses (i) - (v) of the preceding paragraph and
to cause the Shelf Registration to be declared effective by
the Commission on or prior to 180 days after such filing
obligation arises; provided that with respect to Exchange
Securities received by the Initial Purchaser in exchange for
Registrable Securities constituting any portion of an unsold
allotment, the Company and the Trust may, if permitted by
current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration
Statement
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containing the information required by Regulation S-K Items
507 and/or 508, as applicable, in satisfaction of their
obligations under this paragraph (a) with respect thereto, and
any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions
herein applicable to, a Shelf Registration Statement; and
provided further, that with respect to a Shelf Registration
Statement required pursuant to clause (ii) of the preceding
paragraph, the consummation of a Registered Exchange Offer
shall relieve the Company and the Trust of their obligations
under this Section 3(a) but only in respect of their
obligations under such clause (ii).
(b) The Company and the Trust shall each use its reasonable 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 (the "Shelf
Registration Period") of two years from the date the Shelf
Registration Statement is declared effective by the
Commission, or such shorter period that will terminate upon
the earlier of the following: (A) when all the Registrable
Securities or Exchange Securities, as applicable, covered by
such Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement, or (B) when in the written
opinion of counsel to the Company and the Trust, all
outstanding Registrable Securities or Exchange Securities held
by persons that are not affiliates of the Company or the Trust
may be resold without registration under the Securities Act
pursuant to Rule 144(k) under the Securities Act or any
successor provision. Furthermore, the Company and the Trust
shall each use its reasonable best efforts, upon the
effectiveness of the Shelf Registration Statement and promptly
upon the request of any Holder, to take any action reasonably
necessary to register the sale of any Registrable Securities
or Exchange Securities of such Holder and to identify such
Holder as a selling securityholder, provided that such Holder
provides the Company with all information reasonably necessary
to effect such registration. The Company and the Trust shall
be deemed not to have used their reasonable best efforts to
keep the Shelf Registration Statement effective during the
requisite period if either the Company or the Trust
voluntarily takes any action that would result in Holders of
securities covered thereby not being able to offer and sell
such securities during that period, unless (i) such action is
required by applicable law, or (ii) such action is taken by
the Company in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, so long as
the Company promptly thereafter complies with the requirements
of Section 4(l) hereof, if applicable.
(c) Except as described below, in the event that either (a)
Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 150th day following the Closing
Date, (b) the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the
Closing Date, (c) the Company and the Trust are obligated to
file the Shelf Registration Statement under Section 3(b) and
the Shelf Registration Statement is not filed with the
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Commission on or prior to 150 days after such filing
obligation arises, (d) the Shelf Registration is not declared
effective by the Commission on or prior to 180 days after the
obligation to file the Shelf Registration Statement arises,
(e) the Exchange Offer is not consummated within 210 days
following the Closing Date, or (f) the Shelf Registration
Statement or the Exchange Offer Registration Statement is
declared effective but thereafter ceases to be effective or
usable in connection with resales of Transfer Restricted
Securities during the Exchange Offer Registration Period or
the Shelf Registration Period, as applicable (each such event
referred to in clauses (a) through (f) above a "Registration
Default"), liquidated damages accruing on the principal or
liquidation amount (the "Additional Interest") will become
payable on the Capital Securities, and any outstanding New
Capital Securities, immediately following the occurrence of
such Registration Default at a rate of 0.25% per annum. In
each case such Additional Interest will be payable in cash
semiannually in arrears on the 31st day of January and July of
each year (each an "Interest Payment Date").
For purposes of the foregoing, "Transfer Restricted Securities" means
each Capital Security, Guarantee or Junior Subordinated Debenture until (i) the
date on which such Capital Security, Guarantee or Junior Subordinated Debenture
has been exchanged by a person other than a broker-dealer for a New Capital
Security, New Guarantee or New Junior Subordinated Debenture in the Exchange
Offer, (ii) following the exchange by a broker-dealer in the Exchange Offer of
a Security, the date on which such Security is sold to a purchaser who receives
from such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Capital Security, Guarantee or Junior Subordinated Debenture
has been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Capital Security, Guarantee or Junior Subordinated Debenture is distributed to
the public pursuant to Rule 144 under the Securities Act.
(d) Upon (w) the filing of the Exchange Offer Registration
Statement, as described above, after the 150-day period
described in clause (a) of the preceding paragraph, (x) the
effectiveness of the Exchange Offer Registration Statement, as
described above, after the 180-day period described in clause
(b) of the preceding paragraph, (y) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration
Statement within the periods described in clauses (d) and (e)
of the preceding paragraph, or (z) the discontinuation of any
Registration Default described in clause (f) of the preceding
paragraph, the Additional Interest payable on the Registrable
Securities from the date of such filing, effectiveness or
consummation, as the case may be, will cease to accrue and all
accrued and unpaid Additional Interest as of the occurrence of
(w), (x), (y) or (z) shall be paid to the holders of the
Registrable Securities on the next Interest Payment Date.
(e) In the event that a Shelf Registration Statement is declared
effective hereunder, if the Company or the Trust fails to keep
such Shelf Registration Statement continuously effective for
the period required hereby, then from the next day
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following such time as the Shelf Registration Statement is no
longer effective until the earlier of (i) the date that the
Shelf Registration Statement is again deemed effective, (ii)
the date that is the second anniversary of the date of the
original issuance of the Registrable Securities or (iii) the
date as of which all of the Registrable Securities covered by
the Shelf Registration Statement are sold pursuant thereto or
may be sold without registration pursuant to Rule 144 under
the Securities Act, Additional Interest shall accrue at a rate
per annum equal to 0.25% of the principal amount or
liquidation amount, as applicable, of the Registrable
Securities and shall be payable in cash, in arrears on each
Interest Payment Date; it being understood that after the
Registered Exchange Offer has been consummated, no Additional
Interest shall accrue in respect of Registrable Securities,
without prejudice to any other claim that any Holder may have
for any failure by the Company to obtain or maintain
continuous effectiveness of the Exchange Offer Registration
Statement or a Shelf Registration Statement in accordance with
the terms of this Agreement.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company and the Trust shall furnish to the Initial
Purchaser, prior to the filing thereof with the Commission, a
copy of any Registration Statement, and each amendment thereto
and each amendment or supplement, if any, to the Prospectus
included therein and shall use their reasonable best efforts
to reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchaser reasonably
may propose.
(b) The Company and the Trust shall ensure that (i) any
Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or
supplement thereto (and each document incorporated therein by
reference) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules
and regulations thereunder, (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 as of the date thereof include an untrue statement of
a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) (1) The Company and the Trust shall advise the Initial
Purchaser and, in the case of a Shelf Registration Statement,
the Holders of securities covered thereby, and, if requested
by the Initial Purchaser or any such Holder, confirm such
advice in writing:
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(i) when the 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 Company and the Trust shall advise the
Initial 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 that has provided in writing to
the Company a telephone or facsimile number and address for notices, and, if
requested by the Initial Purchaser 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 overtly
threatening of any proceeding for such purpose;
(iii) the happening of any event that requires the making
of any changes in the Registration Statement or the
Prospectus so that, as of such date, the statements
therein are not misleading and do not omit to state a
material fact required to be stated therein or
necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances
under which they were made) not misleading (which
advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite
changes have been made); and
(iv) the Company's or the Trust's determination that a
post-effective amendment to a Registration Statement
would be appropriate;
and upon receipt of any such advice, such Holder or Exchanging Dealer shall
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Xxxxxx's or Exchanging Dealer's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
4(l) hereof or until it is advised in writing by the Trust and the Company that
the use of the applicable Prospectus may be resumed.
(d) The Company and the Trust shall use their reasonable best
efforts to prevent the issuance, and if issued to obtain the
withdrawal, of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
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(e) On or prior to the time that an Exchange Offer Registration
Statement or Shelf Registration Statement is first effective
under the Securities Act, the Company may, in its discretion,
cause the Capital Securities or New Capital Securities,
respectively, to be duly authorized for listing, subject in
the case of an Exchange Offer Registration Statement to
official notice of issuance, on the New York Stock Exchange as
a fixed income security (or, if such listing is unavailable,
as an equity security) and thereafter shall maintain such
listing; or, in the alternative, the Company may, in its
discretion, cause the Capital Securities or New Capital
Securities, respectively, to be freely tradable to the same
extent as if duly authorized for listing on the New York Stock
Exchange as described above.
(f) The Company and the Trust 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 filed therewith (including those incorporated by
reference).
(g) The Company and the Trust 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 Company and the Trust
each consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of
securities in connection with the offering and sale of the
securities covered by the Prospectus or any amendment or
supplement thereto.
(h) The Company and the Trust shall furnish to each Exchanging
Dealer that 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 filed therewith (including those
incorporated by reference).
(i) The Company and the Trust shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging
Dealer, without charge, as many copies of the final 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 Company and
the Trust each consent to the use of the Prospectus or any
amendment or supplement thereto by any such Exchanging Dealer,
as aforesaid.
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(j) Prior to the Registered Exchange Offer or any other offering
of securities pursuant to any Registration Statement, the
Company and the Trust shall 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 jurisdictions of the securities covered by such
Registration Statement; provided, however, that in no event
shall the Company or the Trust be required to qualify
generally to do business in any jurisdiction where it is not
then so qualified or to take any action which would subject it
to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(k) The Company and the Trust shall cooperate with the Holders of
Registrable Securities or Exchange Securities, as the case may
be, to facilitate the timely preparation and delivery within
the times required by normal-way settlement 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
reasonably request prior to sales of securities pursuant to
such Registration Statement.
(l) If (i) Shelf Registration is filed pursuant to Section 3
hereof, or (ii) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Exchanging Dealer who seeks to sell Registrable Securities or
Exchange Securities during the Shelf Registration Period or
the Exchange Offer Registration Period, as the case may be,
upon the occurrence of any event contemplated by paragraph
4(c)(2)(i), 4(c)(2)(iii) or 4(c)(2)(iv) hereof, the Company
and the Trust shall, as promptly as practicable, prepare and
file with the Commission, at the sole expense of the Company,
a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder or to the purchasers of the
Exchange Securities to whom such Prospectus will be delivered
by an Exchanging Dealer, any such Prospectus will not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(m) Not later than the effective date of any such Registration
Statement hereunder, the Company and the Trust shall provide a
CUSIP number for the Capital Securities or the New Capital
Securities, as the case may be, registered under such
Registration Statement. In the event of and at the time of
any distribution of the Junior Subordinated Debentures to
Holders, the Company and the Trust shall
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provide a CUSIP number for the Junior Subordinated Debentures
or the New Junior Subordinated Debentures and provide the
applicable trustee with certificates for such securities, in a
form eligible for deposit with DTC. The Company and the Trust
shall use their reasonable best efforts to cause the CUSIP
Service Bureau to issue the same CUSIP number for all Exchange
Securities or Registrable Securities, as the case may be,
delivered pursuant to a Registration Statement as was
originally issued for the Registrable Securities.
(n) The Company and the Trust shall use their best efforts to
comply with all applicable rules and regulations of the
Commission to the extent and so long as they are applicable to
the Registered Exchange Offer, the Exchange Offer Registration
Statement or the Shelf Registration Statement and shall make
generally available to their 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 Securities Act.
(o) The Company and the Trust shall cause the indenture relating
to the Junior Subordinated Debentures, the Capital Securities
Guarantee and the declaration of trust of the Trust pursuant
to which the terms of the Capital Securities are established,
or any corresponding documents in respect of the Exchange
Securities, as the case may be, to be qualified under the
Trust Indenture Act in a timely manner.
(p) The Company and the Trust shall, if requested, use their
reasonable best efforts promptly to incorporate in a
Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing
Underwriters reasonably agree should be included therein and
shall make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after they
are 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 Company
and the Trust shall enter into such agreements (including an
underwriting agreement) and take all other appropriate
actions, if any, in order to facilitate the registration or
the disposition of the Registrable Securities or the Exchange
Securities, as the case may be, to be registered thereunder.
(r) In connection therewith, if an underwriting agreement is
entered into, the Company and the Trust shall cause the same
to contain indemnification provisions and procedures no less
favorable than those set forth in Section 6 hereof (or such
other provisions and procedures acceptable to the Managing
Underwriters, if any), with respect to all parties to be
indemnified pursuant to Section 6 hereof.
(s) In the case of any underwritten offering under a Shelf
Registration Statement or at the request of the Initial
Purchaser to the extent that the Initial Purchaser has
Registrable Securities or Exchange Securities eligible for
resale thereunder, the
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Company and the Trust shall (i) make reasonably available for
inspection by a representative of the Holders of a majority of
the securities to be registered thereunder, the Initial
Purchaser (if applicable) and any underwriter participating in
any disposition pursuant to such Registration Statement, and
any attorney, accountant or other agent retained by any such
Holders, Initial Purchaser or underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company, its subsidiaries and the Trust;
(ii) cause the Company's officers, directors and employees and
the trustees of the Trust to supply all relevant information
reasonably requested by the representative of the Holders, the
Initial Purchaser (if applicable) 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 any
information that is designated in writing by the Company and
the Trust, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Holders, the Initial Purchaser (if applicable) or any such
underwriter, 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 Holders of securities
registered thereunder, the Initial Purchaser (if applicable)
and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement; (iv)
obtain opinions of counsel to the Company and the Trust (who
may be the general counsel of the Company) and updates thereof
(which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters,
if any) in customary form and scope addressed to each selling
Holder, Initial Purchaser (if applicable) and the
underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such
Holders, Initial Purchaser (if applicable) and underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and
if necessary, any other independent certified 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, the Initial Purchaser (if applicable)
and the underwriters, if any, 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
any such Holders, the Initial Purchaser (if applicable) or the
Managing Underwriters, if any, including those to evidence
compliance with Section 4(l) hereof and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company and the Trust. The
foregoing actions set forth in clauses (iii), (iv), (v) and
(vi) of this Section 4(s) shall be performed at (A)
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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.
5. Registration Expenses. The Company shall bear all expenses incurred
in connection with the performance of its 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 of counsel designated by the majority of the
Holders of the Registrable Securities or Exchange Securities, as the
case may be, covered by such Shelf Registration Statement to act as
counsel for the Holders in connection therewith.
6. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company
agrees to indemnify and hold harmless the Trust, each Holder
of securities covered thereby (including the Initial Purchaser
and, with respect to any Prospectus delivery as contemplated
in Section 4(i) 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 Securities 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 Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement (including all documents incorporated by referenced
therein) as originally filed or in any amendment thereof, or
in any preliminary prospectus or Prospectus, or in any
amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and 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
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 Company by or on behalf of any such Holder
specifically for inclusion therein; and provided, further,
that the Company will not be liable under the provisions of
this Section 6 with respect to the Prospectus to the extent
that any such loss, claim, damage or liability results from
the fact that the indemnified party sold securities covered by
the Registration Statement to a person to whom there was not
sent or given, within the time required by the Securities Act,
a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished such amendments or
supplements thereto to the indemnified party in accordance
with the provisions of
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Section 4 hereof) if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability. This indemnity agreement
will be in addition to any liability which the Company may
otherwise have.
The Company also agrees to indemnify or contribute to Losses, as
provided in Section 6(d) hereof, of 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 Initial Purchaser and the selling Holders
provided in this Section 6(a) and shall, if requested by any Holder, 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 Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 4(i) hereof,
each Exchanging Dealer) severally agrees to indemnify and hold
harmless the Company, the Trust, each of their directors,
trustees, administrators, officers and each person who
controls the Company or the Trust within the meaning of either
the Securities 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 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 the indemnifying party from liability
under paragraph (a) or (b) above unless and to the extent the
indemnifying party 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 the indemnification
obligation provided in paragraph (a) or (b) above. 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 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), and the indemnifying party shall bear the reasonable
fees, costs and expenses of one such separate counsel (in
addition to local counsel) designated by
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the indemnified parties 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
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 parties, 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 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; provided, however, that in no case
shall the Initial Purchaser or any subsequent Holder of any
Registrable Security or Exchange Security be responsible, in
the aggregate, for any amount in excess of the purchase
discount or commission applicable to such security, or in the
case of an Exchange Security, applicable to the Registrable
Security which was exchangeable into such Exchange Security,
as set forth on the cover page of the Final Offering
Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter
under 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
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considerations. Benefits received by the Company shall be
deemed to be equal to the sum of (x) the total net proceeds
from the Initial Placement (before deducting expenses) as set
forth on the cover page of the Final Offering Memorandum and
(y) the total amount of additional interest which the Company
was not required to pay as a result of registering the
securities covered by the Registration Statement which
resulted in such Losses. Benefits received by the Initial
Purchaser shall be deemed to be equal to the total purchase
discounts and commissions as set forth on the cover page of
the Final Offering Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the value of
receiving Registrable Securities or Exchange Securities, as
applicable, registered under the Securities 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 Securities 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
Securities 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 and the Trust within the meaning of either the
Securities Act or the Exchange Act, each officer of the
Company or trustee of the Trust who shall have signed the
Registration Statement and each director of the Company or
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 or controlling persons referred to in this
Section 6, and will survive the sale by a Holder of securities
covered by a Registration Statement.
7. Participation in an Underwritten Offering. No Holder may participate
in an underwritten offering hereunder unless such Xxxxxx (a) agrees to
sell such Xxxxxx's Registrable Securities on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents
reasonably required under the terms of such underwriting arrangements.
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8. 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 the Shelf Registration Statement in an
underwritten offering, subject to the provisions of Section 4(s)
hereof. In any such underwritten offering, the underwriter or
underwriters and Managing Underwriters that will administer the
offering will be selected by the Holders of a majority in aggregate
liquidation 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.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Trust have
not, as of the date hereof, entered into, nor shall they, on
or after the date hereof, enter into, any agreement with
respect to their 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 Company and the Trust have obtained the written
consent of the Holders of at least a majority in liquidation
amount of the Capital Securities then outstanding (or, after
the consummation of any Exchange Offer in accordance with
Section 2 hereof, of Exchange Securities then outstanding);
provided that, with respect to any matter that directly or
indirectly affects the rights of the Initial Purchaser
hereunder, the Company shall obtain the written consent of the
Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective.
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 of such affected Holders, determined on the
basis of securities being sold rather than registered under
such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by
such Holder to the Company;
(ii) if to the Initial Purchaser, initially at the
respective addresses set forth in the Purchase
Agreement; and
(iii) if to the Company or the Trust, initially at their
addresses set forth in the Purchase Agreement.
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All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchaser, the Company or the Trust by notice
to the others 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 Registrable Securities and/or
Exchange Securities. The Company and the Trust hereby agree
to extend the benefits of this Agreement to any Holder of
Registrable 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 or 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 Company, etc. Whenever the consent or
approval of Holders of a specified number, or percentage of
principal amount or liquidation amount, as the case may be, of
Registrable Securities or Exchange Securities is required
hereunder, Registrable Securities or Exchange Securities, as
applicable, held by the Company or its Affiliates (other than
subsequent Holders of Registrable Securities or Exchange
Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such
Registrable Securities or Exchange Securities) shall not be
counted in determining whether such consent or approval was
given by the Holders of such required percentage.
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Please confirm your agreement by having your authorized officer sign a
copy of this Registration Rights Agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
BSB BANCORP, INC.
By:
-------------------------------------
Name:
Title:
BSB CAPITAL TRUST I
By: BSB BANCORP, INC.
as Depositor
By:
-------------------------------------
Name:
Title:
Accepted:
XXXXX, XXXXXXXX & XXXXX, INC.
By:
---------------------------------
Name:
Title:
Date: July 24, 1998
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ANNEX A
Based on interpretations by the staff of the Securities and Exchange Commission
(the "Commission"), as set forth in no-action letters issued to third parties,
the Company and the Trust believe that the Exchange Securities issued pursuant
to the Exchange Offer may be offered for resale, resold or otherwise
transferred by holders thereof (other than any holder that is an "affiliate" of
the Company or the Trust as defined under Rule 405 of the Securities Act),
provided that such Exchange Securities are acquired in the ordinary course of
such holders' business and such holders are not engaged in, and do not intend
to engage in, a distribution of such Exchange Securities and have no
arrangement or understanding with any person to participate in the distribution
of such Exchange Securities. However, the staff of the Commission has not
considered the Exchange Offer in the context of a no-action letter, and there
can be no assurance that the staff of the Commission would make a similar
determination with respect to the Exchange Offer as in such other
circumstances. By tendering the Registrable Securities in exchange for
Exchange Securities, each holder, other than a broker-dealer, will represent to
the Company and the Trust that: (i) it is not an affiliate of the Company or
the Trust (as defined under Rule 405 of the Securities Act); (ii) any Exchange
Securities to be received by it were acquired in the course of its ordinary
business; and (iii) it is not engaged in, and does not intend to engage in, a
distribution of the Exchange Securities and has no arrangement or understanding
to participate in a distribution of the Exchange Securities.
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
broker-dealer in connection with resales of Exchange Securities received in
exchange for Registrable Securities where such Registrable Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Company and the Trust have agreed that, starting on
the date on which the Exchange Offer is consummated and ending on the close of
business one year after such date, they will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
A-1
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ANNEX B
Based on interpretations by the staff of the Commission as set forth in
no-action letters issued to third parties, the Company and the Trust believe
that holders of Registrable Securities (other than any holder that is an
"affiliate" of the Company or the Trust as defined under Rule 405 of the
Securities Act) who exchange their Registrable Securities for Exchange
Securities pursuant to the Exchange Offer may offer such Exchange Securities
for resale, resell such Exchange Securities and otherwise transfer such
Exchange Securities without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such Exchange
Securities are acquired in the ordinary course of such holders' business and
such holders are not engaged in, and do not intend to engage in, a distribution
of such Exchange Securities and have no arrangement or understanding with any
person to participate in the distribution of such Exchange Securities.
However, the staff of the Commission has not considered the Exchange Offer in
the context of a no-action letter, and there can be no assurance that the staff
of the Commission would make a similar determination with respect to the
Exchange Offer. Each broker-dealer that receives Exchange Securities for its
own account in exchange for Registrable Securities, where such Registrable
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."
B-1
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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 Registrable Securities where such Registrable Securities were
acquired as a result of market-making activities or other trading activities.
The Company and the Trust have agreed that, starting on the date on which the
Exchange Offer is consummated and ending on the close of business one year
after such date, they 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 Company and the Trust will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. 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
[or the New York Stock Exchange], 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 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
broker-dealer 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 on 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 one year after the date on which the Exchange Offer is
consummated, the Company and the Trust 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
Company and the Trust have agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the Holders of the Registrable
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the Holders of the Registrable 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.]
C-1
26
ANNEX D
_ 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:
-----------------------------
-----------------------------
The undersigned acknowledges that this Exchange Offer is being made by the
Company and the Trust based upon the Company's and Trust's understanding of an
interpretation by the staff of the Securities and Exchange Commission (the
"Commission") as set forth in no-action letters issued to third parties, that
the Exchange Securities issued in exchange for Registrable Securities by
holders thereof (other than to holders that are "affiliates" of the Company or
the Trust within the meaning of Rule 405 under the Securities Act), may be so
issued without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that: (i) such holders are not
affiliates of the Company or the Trust within the meaning of Rule 405 under the
Securities Act; (ii) such Exchange Securities are acquired in the ordinary
course of such holders' business; and (iii) such holders are not engaged in,
and do not intend to engage in, a distribution of such Exchange Securities and
have no arrangement or understanding with any person to participate in the
distribution of such Exchange Securities. However, the staff of the Commission
has not considered the Exchange Offer in the context of a no-action letter and
there can be no assurance that the staff of the Commission would make a similar
determination with respect to the Exchange Offer as in other circumstances. If
a holder of Registrable Securities is an affiliate of the Company, or is
engaged in or intends to engage in a distribution of the Exchange Securities or
has any arrangement or understanding with respect to the distribution of the
Exchange Securities to be acquired pursuant to the Exchange Offer, such holder
could not rely on the applicable interpretations of the staff of the Commission
and must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any secondary resale transaction. If the
undersigned is a broker-dealer that will receive Exchange Securities for its
own account in exchange for Registrable Securities, it represents that the
Registrable 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.
C-2
