EXHIBIT 4.8
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated February 12, 1997
among
HAVEN BANCORP, INC.
HAVEN CAPITAL TRUST I
and
SANDLER X'XXXXX & PARTNERS, L.P.
as Initial Purchaser
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of February 12, 1997 among HAVEN BANCORP, INC., a Delaware
corporation (the "COMPANY"), HAVEN CAPITAL TRUST I, a business trust formed
under the laws of the state of Delaware (the "TRUST"), and SANDLER X'XXXXX &
PARTNERS, L.P. (the "INITIAL PURCHASER").
This Agreement is made pursuant to the Purchase Agreement dated
February 7, 1997 (the "PURCHASE AGREEMENT"), among the Company, as issuer of
the 10.46% Junior Subordinated Deferrable Interest Debentures due 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 25,000 of the Trust's 10.46% 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
their direct and indirect transferees the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition
to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"ADVICE" shall have the meaning set forth in the last paragraph of
Section 3 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 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.
2
"DECLARATION" or "DECLARATION OF TRUST" shall mean the Amended and
Restated Declaration of Trust, dated as of February 12, 1997, by the trustees
named therein and the Company as sponsor.
"DEPOSITARY" shall mean The Depository Trust Company, or any other
depositary appointed by the Trust; PROVIDED, HOWEVER, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section 2(b)
hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"HOLDER" shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture or Declaration of Trust.
"INDENTURE" shall mean the Indenture relating to the Subordinated
Debentures dated as of February 12, 1997 between 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.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section 2(e)
hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
liquidation amount of outstanding Capital Securities.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability Company, or a government or
agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in the Shelf 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 the Shelf Registration Statement, and by
all other
3
amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble to
this Agreement.
"RECORDS" shall have the meaning set forth in Section 3(n) hereof.
"REGISTRATION DEFAULT" shall have the meaning set forth in Section 2(d)
hereof.
"REGISTRABLE SECURITIES" shall mean the Securities; PROVIDED, HOWEVER,
that Securities shall cease to be Registrable Securities when (i) the Shelf
Registration Statement with respect to such Securities shall have been
declared effective under the Securities Act and such Securities shall have
been disposed of pursuant to such Shelf Registration Statement, (ii) such
Securities shall have been sold to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) under the Securities Act,
or (iii) such Securities shall have ceased to be outstanding.
"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 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 the Shelf
Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) the fees and disbursements of
counsel for the Company and of the independent certified public accountants
of the Company, including the expenses of any "cold comfort" letters required
by or incident to such performance and compliance, (vi) the fees and expenses
of the 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
4
special experts retained by the Company in connection with the Shelf
Registration Statement.
"RULE 144(K) PERIOD" shall mean the period of three 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(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company and the Trust pursuant to the provisions of Section
2(a) hereof which covers all of the Registrable Securities on an appropriate
form under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) 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) SHELF REGISTRATION. 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, (i) cause to be filed with the SEC within 150 days after the Issue Date
a Shelf Registration Statement on an appropriate form under the Securities
Act providing for the sale by the Holders of all of the Registrable
Securities and (ii) use its best efforts to cause such Shelf Registration
Statement to be declared effective under the Securities Act by the SEC not
later than the date which is 180 days after the Issue Date. No Holder of
Registrable Securities shall be entitled to include any of its Registrable
Securities in the 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
5
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 the Shelf Registration Statement or Prospectus included therein.
Each Holder as to which the Shelf Registration is being effected agrees to
furnish to the Company and the Trust all information with respect to such
Holder necessary to make the information previously furnished to the Company
by such Holder not materially misleading. The Company and the Trust agree to
use their best efforts to keep the Shelf Registration Statement continuously
effective 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 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.
(b) EXPENSES. The Company, as issuer of the Subordinated
Debentures, shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) hereof and will reimburse the Initial
Purchaser for the reasonable fees and disbursements of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Initial Purchaser, incurred in connection
with the Shelf Registration Statement, 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 the 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.
6
(c) EFFECTIVE REGISTRATION STATEMENT. A Shelf Registration
Statement pursuant to Section 2(a) 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 the 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 Shelf Registration
Statement will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Shelf Registration Statement may legally resume. The Company and the Trust
will be deemed not to have used their best efforts to cause the Shelf
Registration Statement to become, or to remain, effective during the
requisite period if either of them voluntarily take any action that would
result in any such Shelf Registration Statement not being declared effective
or in the Holders of Registrable Securities covered thereby not being able to
offer and sell such Registrable Securities during that period unless such
action is required by applicable law.
(d) LIQUIDATED DAMAGES. In the event that:
(i) the Shelf Registration Statement is not filed with the SEC on or
prior to the 150th day after the Issue Date, then commencing on the 151st
day after the Issue Date, liquidated damages shall accrue on the principal
amount of the Subordinated Debentures, and additional Distributions shall
accumulate on the liquidation amount of the Trust Securities, each at a
rate of .25% per annum; or
(ii) the Shelf Registration Statement is not declared effective by the
SEC on or prior to the 180th day after the Issue Date, then, commencing on
the 181st day after the Issue Date, liquidated damages shall accrue on the
principal amount of the Subordinated Debentures, and additional
Distributions shall accumulate on the liquidation amount of the Trust
Securities, each at a rate of .25% per annum; or
(iii) 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) and such event continues for a period
exceeding 45 consecutive days, then liquidated damages shall accrue on the
principal amount of Subordinated Debentures, and additional Distributions
shall accumulate on the liquidation amount of the Trust Securities, each at
a rate of .25% per annum commencing on the 46th consecutive day after such
Shelf Registration Statement ceases to be effective;
7
PROVIDED, HOWEVER, that neither the liquidated damages on the Subordinated
Debentures, nor the additional Distribution rate on the liquidation amount of
the Trust Securities, may exceed in the aggregate .25% per annum; PROVIDED,
FURTHER, HOWEVER, that (1) upon the filing of the Shelf Registration Statement
(in the case of clause (i) above), (2) upon the effectiveness of the Shelf
Registration Statement (in the case of clause (ii) above), or (3) upon the
effectiveness of the Shelf Registration Statement which had ceased to remain
effective (in the case of clause (iii) above), liquidated damages on the
Subordinated Debentures, and additional distributions on the liquidation amount
of the Trust Securities as a result of such clause, as the case may be, shall
cease to accrue or accumulate, as the case may be.
Any amounts of liquidated damages and additional Distributions due pursuant
to Section 2(d)(i), (ii) or (iii) above will be payable in cash on the next
succeeding February 1 or August 1 , as the case may be, to Holders on the
relevant record dates for the payment of interest and Distributions pursuant to
the Indenture and the Declaration, respectively.
(e) SPECIFIC ENFORCEMENT. Without limiting the remedies available to
the Holders, the Company and the Trust acknowledge that any failure by the
Company or the Trust to comply with its obligations under Section 2(a) hereof
may result in material irreparable injury to the Holders for which there is no
adequate remedy at law, that it would not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, any Holder
may obtain such relief as may be required to specifically enforce the Company's
and the Trust's obligations under Section 2(a) hereof.
3. REGISTRATION PROCEDURES. In connection with the obligations of
the Company and the Trust with respect to the Shelf Registration Statement
pursuant to Section 2(a) hereof, the Company and the Trust shall use their
best efforts to:
(a) prepare and file with the SEC the Shelf Registration Statement
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 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 best efforts to
cause such Shelf Registration Statement to become effective and remain
effective in accordance with Section 2 hereof; PROVIDED, HOWEVER, that
the Company and the Trust shall furnish to and afford the Holders of the
Registrable Securities covered by such Registration Statement, their
counsel and the
8
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 the Shelf
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,
their counsel or the managing underwriters, if any, shall reasonably
object in writing; PROVIDED, HOWEVER, that if the Company and the Trust
do not file the Shelf Registration Statement because of the objection of
the Majority Holders, their counsel or the managing underwriter, if any,
the time periods set forth under Section 2(d) hereof shall be tolled
until such time (the "Tolling Period") as whichever of the Majority
Holders, their counsel or the managing underwriter, if any, has filed
such written objection thereafter provides the Company and the Trust
written confirmation of their nonobjection to the filing of the Shelf
Registration Statement. During the Tolling Period, the Majority Holders,
their counsel, the managing underwriter, if any, the Company and the
Trust shall act in good faith to complete the filing of the Shelf
Registration Statement;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep
such Shelf Registration Statement effective for the Effectiveness Period;
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 the Shelf Registration Statement
during the Effectiveness Period in accordance with the intended method or
methods of distribution by the selling Holders thereof described in this
Agreement;
(c) (i) notify each Holder of Registrable Securities included in the
Shelf Registration Statement, at least three Business Days prior to filing,
that the Shelf Registration Statement with respect to the Registrable
Securities is being filed and advising such Holder that the distribution of
Registrable Securities will be made in accordance with the method selected
by the Majority Holders; and (ii) furnish to each Holder of Registrable
Securities included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably request, in
order to facilitate the public sale
9
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) use its 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) notify each Holder of Registrable Securities, their counsel and
the managing underwriters, if any, promptly and promptly confirm such
notice in writing (i) when the Shelf 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 the Shelf Registration
Statement or Prospectus or for additional information after the Shelf
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or the qualification of
the Registrable Securities in any jurisdiction described in paragraph 3(d)
hereof or the initiation of any proceedings for that purpose, (iv) if,
between the effective date of the Shelf 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
10
makes any statement made in the Shelf Registration Statement or the related
Prospectus untrue in any material respect or which causes such Shelf
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
Shelf Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement at
the earliest possible moment;
(g) furnish to each Holder of Registrable Securities included within
the coverage of the Shelf Registration Statement, without charge, at least
one conformed copy of the Shelf Registration Statement and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) 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 the Shelf
Registration Statement;
(i) upon the occurrence of any circumstance contemplated by Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its best efforts to
prepare a supplement or post-effective amendment to the Shelf 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) a reasonable time prior to the filing of any document which is to
be incorporated by reference into the Shelf Registration Statement or a
Prospectus after the initial
11
filing of the Shelf 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 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) not later than the
effective date of the Shelf Registration Statement, and provide the Trustee
with printed certificates for the Registrable Securities in a form eligible
for deposit with the Depositary;
(l) cause the Indenture, the Declaration and the Guarantee to be
qualified under the Trust Indenture Act of 1939 (the "TIA") in connection
with the registration of the Registrable Securities 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 best efforts
to cause the relevant trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be
filed with the SEC to enable such documents to be so qualified in a timely
manner;
(m) 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
12
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
Shelf 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 Shelf 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) make reasonably available for inspection by any selling Holder of
such Registrable Securities being sold, 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
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. 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 the Shelf Registration
Statement, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court
13
of competent jurisdiction or is necessary in connection with any action,
suit or proceeding or (iii) the information in such Records has been made
generally available to the public. Each selling Holder of such Registrable
Securities will be required to agree in writing that information obtained
by it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Trust or the Company unless and until such is made
generally available to the public. Each selling Holder of such Registrable
Securities 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 the Shelf Registration Statement, which
statements shall cover said 12-month periods;
(p) cooperate with each seller of Registrable Securities covered by
the Shelf 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;
(q) use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities covered by the Shelf
Registration Statement contemplated hereby;
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 the Shelf
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
14
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 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 pursuant to the Shelf Registration Statement, the
Company and the Trust shall use their best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement
to the Shelf Registration Statement and shall extend the period during which
such Shelf 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. (a) In connection with the
Shelf 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 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 the Shelf Registration Statement (or any amendment thereto), covering
Registrable 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
15
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, 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 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 or on behalf of such Holder, or any
underwriter with respect to such Holder, or any underwriter, as the case may
be, expressly for use in the Shelf 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, 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, any underwriter or controlling person results from the
fact that such Holder or any underwriter 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 or underwriter
and the loss, liability, claim, damage or expense of such Holder or
underwriter 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
16
Trust who signed the Shelf Registration Statement), employees and agents and
each Person, if any, who controls the Company, the Trust, any underwriter or
any other selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all loss,
liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf 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
Shelf Registration Statement (or any amendment thereto), or any such
Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER, that
no such Holder shall be liable for any amounts hereunder in excess of the
amount of net proceeds received by such Holder from the sale of Registrable
Securities pursuant to the 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. 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
17
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), 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
18
entitled to contribution from any Person that was not guilty of such
fraudulent misrepresentation. As between the Company, the Trust, and the
Holders, such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect the relative
fault of the Company and Trust, on the one hand, and the Holders, on the
other hand, with respect to the statements or omissions which resulted in
such loss, liability, claim, damage or expense, or action in respect thereof,
as well as any other relevant equitable considerations. The relative fault
of the Company and the Trust, on the one hand, and of the Holders, on the
other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Trust, on the one hand, or by or on behalf of the Holders,
on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Trust and the Holders of the Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
Section 4 were to be determined by pro rata allocation or by any other method
of allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 4, each affiliate of a Holder,
and each 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 Shelf
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 amount of the Registrable
19
Securities included in such offering; PROVIDED, HOWEVER, that such
underwriters and managers must be reasonably satisfactory to the Company and
the Trust.
7. MISCELLANEOUS.
(a) RULE 144 AND RULE 144A. For so long as the Company or the Trust
is subject to the reporting requirements of Section 13 or 15 of the Exchange
Act and any Registrable Securities remain outstanding, the Company and the
Trust, as the case may be, will 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 Trust 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,
modification, supplement, waiver or departure; PROVIDED no amendment,
modification or supplement or waiver or consent to the
20
departure with respect to the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities unless consented to
in writing by such Holder of Registrable Securities. Notwithstanding the
foregoing sentence, (i) this Agreement may be amended, without the consent of
any Holder of Registrable Securities, by written agreement signed by the
Company, the Trust and the Initial 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 the 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 the 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 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
21
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 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
22
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.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HAVEN BANCORP, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and CEO
HAVEN CAPITAL TRUST I
By: /s/ Xxxxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Administrative Trustee
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
Title: Administrative Trustee
Confirmed and accepted as of
the date first above
written:
SANDLER X'XXXXX & PARTNERS, L.P.
By: SANDLER X'XXXXX & PARTNERS CORP.,
the sole general partner
By: /s/ Xxxxxxxxxxx Xxxxxxxxxxx
------------------------------
Name: Xxxxxxxxxxx Xxxxxxxxxxx
Title: Vice President
