________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
Dated June 5, 1997
among
PATRIOT BANK CORP.
PATRIOT CAPITAL TRUST I
and
SANDLER X'XXXXX & PARTNERS, X.X.
XXXXXX XXXXXXXXXX XXXXX INC.
as Initial Purchasers
_______________________________________________________________
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into as of June 5, 1997 among PATRIOT BANK CORP.,
a Delaware corporation (the "Corporation"), PATRIOT CAPITAL TRUST
I, a business trust formed under the laws of the state of Delaware
(the "Trust"), and SANDLER X'XXXXX & PARTNERS, L.P. and XXXXXX
XXXXXXXXXX XXXXX INC. (the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated June 2, 1997 (the "Purchase Agreement"), among the
Corporation, as issuer of the Series A 10.30% Junior Subordinated
Deferrable Interest Debentures due June 1, 2027 (the "Subordinated
Debentures"), the Trust and the Initial Purchasers, which provides
for, among other things, the sale by the Trust to the Initial
Purchasers of $19,000,000 of the Trust's Series A 10.30% 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 Corporation's
guarantee of the Capital Securities (the "Capital Securities
Guarantee"), are collectively referred to as the "Securities". In
order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Corporation and the Trust have agreed to provide to
the Initial Purchasers 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:
"Additional Distributions" shall have the meaning set forth in
Section 2(e) hereof.
"Advice" shall have the meaning set forth in the last
paragraph of Section 3 hereof.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in
Section 3(t) hereof.
"Business Day" means any day other than a Saturday, a Sunday,
or a day on which banking institutions in New York, New York,
Wilmington, Delaware or Pottstown, Pennsylvania are authorized or
required by law or executive order to close.
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Corporation" shall have the meaning set forth in the preamble
to this Agreement and also includes the Corporation's successors
and permitted assigns.
"Declaration" or "Declaration of Trust" shall mean the Amended
and Restated Declaration of Trust of Patriot Capital Trust I, dated
as of June 5, 1997, by the trustees named therein and the
Corporation as sponsor.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Trust; provided, however, that
such depositary must have an address in the Borough of Manhattan,
in The City of New York.
"Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Exchange Offer" shall mean the offer by the Corporation and
the Trust to the Holders to exchange all of the Registrable Securi-
ties (other than Private Exchange Securities) for a like principal
amount of Exchange Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
the Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on
another appropriate form), and all amendments and supplements to
such registration statement, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorpo-
rated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Securities" shall mean (i) with respect to the
Subordinated Debentures, the Series B 10.30% Junior Subordinated
Deferrable Interest Debentures due June 1, 2027 (the "Exchange
Debentures") containing terms substantially identical to the Subor-
dinated Debentures (except that they will not contain terms with
respect to the transfer restrictions under the Securities Act
(other than requiring minimum transfers thereof to be in blocks of
$100,000 aggregate principal amount), and will not provide for any
Liquidated Damages thereon), (ii) with respect to the Capital
Securities, the Trust's Series B 10.30% Capital Securities, liqui-
dation amount $1,000 per Capital Security (the "Exchange Capital
Securities") which will have terms substantially identical to the
Capital Securities (except they will not contain terms with respect
to transfer restrictions under the Securities Act (other than
requiring minimum transfers thereof to be in blocks of $100,000
aggregate liquidation amount), and will not provide for any
increase in Additional Distributions thereon) and (iii) with
respect to the Capital Securities Guarantee, the Corporation's
guarantee (the "Exchange Capital Securities Guarantee") of the
Exchange Capital Securities which will have terms substantially
identical to the Capital Securities Guarantee.
"Holder" shall mean the Initial Purchasers, for so long as
they own 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 Subor-
dinated Debentures and the Exchange Debentures dated as of June 1,
1997 between the Corporation, as issuer, and The Bank of New York,
as trustee, as the same may be amended from time to time in accor-
dance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n)
hereof.
"Issue Date" shall mean June 5, 1997, the date of original
issuance of the Securities.
"Liquidated Damages" shall have the meaning set forth in
Section 2(e) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, limited liability corpora-
tion, or a government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section
2(a) hereof.
"Private Exchange Securities" shall have the meaning set forth
in Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Regis-
tration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-
effective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
hereof.
"Registrable Securities" shall mean the Securities and, if
issued, the Private Exchange Securities; provided, however, that
Securities or Private Exchange Securities, as the case may be,
shall cease to be Registrable Securities when (i) a Registration
Statement with respect to such Securities or Private Exchange
Securities for the exchange or resale thereof, as the case may be,
shall have been declared effective under the Securities Act and
such Securities or Private Exchange Securities, as the case may be,
shall have been disposed of pursuant to such Registration State-
ment, (ii) such Securities or Private Exchange Securities, as the
case may be, shall have been sold to the public pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A)
under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k), (iii) such Securities
or Private Exchange Securities, as the case may be, shall have
ceased to be outstanding or (iv) with respect to the Securities,
such Securities shall have been exchanged for Exchange Securities
upon consummation of the Exchange Offer and are thereafter freely
tradeable by the holder thereof (other than an Affiliate of the
Corporation).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Corporation 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 Regis-
trable Securities in accordance with the rules and regulations of
the NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one counsel for all underwrit-
ers or Holders as a group in connection with blue sky qualification
of any of the Exchange Securities or Registrable Securities) and
compliance with the rules of the NASD, (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Pro-
spectus and any amendments or supplements thereto, and in preparing
or assisting in preparing, printing and distributing any underwrit-
ing 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 Corporation and of the independent certified public
accountants of the Corporation, 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 its
counsel and any exchange agent or custodian, (vii) all fees and
expenses incurred in connection with the listing, if any, of any of
the Exchange Securities or the Registrable Securities on any
securities exchange or exchanges, and (viii) the reasonable fees
and expenses of any special experts retained by the Corporation in
connection with any Registration Statement.
"Registration Statement" shall mean any registration statement
of the Corporation and the Trust which covers any of the Exchange
Securities or Registrable Securities pursuant to the provisions of
this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or
such shorter period as may hereafter be referred to in Rule 144(k)
under the Securities Act (or similar successor rule)) commencing on
the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble
to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set
forth in Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" regis-
tration statement of the Corporation and the Trust pursuant to the
provisions of Section 2(b) hereof which covers all of the Regis-
trable Securities or all of the Private Exchange Securities, as the
case may be, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all 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) Exchange Offer. Except as set forth in Section 2(b)
below, the Corporation and the Trust shall, for the benefit of the
Holders, use their reasonable best efforts to (i) cause to be filed
with the SEC within 150 days after the Issue Date an Exchange Offer
Registration Statement on an appropriate form under the Securities
Act relating to the Exchange Offer, (ii) cause such Exchange Offer
Registration Statement to be declared effective under the Securi-
ties Act by the SEC not later than the date which is 180 days after
the Issue Date, and (iii) keep such Exchange Offer Registration
Statement effective for not less than 30 calendar days (or longer
if required by applicable law) after the date notice of the
Exchange Offer is mailed to the Holders. Upon the effectiveness of
the Exchange Offer Registration Statement, the Corporation and the
Trust shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Securities for a like principal
amount of Exchange Debentures or a like liquidation amount of
Exchange Capital Securities, together with the Exchange Guarantee,
as applicable (assuming that such Holder (i) is not an Affiliate of
the Trust or the Corporation, (ii) is not a broker-dealer tendering
Registrable Securities acquired directly from the Corporation for
its own account, (iii) acquires the Exchange Securities in the
ordinary course of such Holder's business and (iv) has no arrange-
ments or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange
Securities) to transfer such Exchange Securities from and after
their receipt without any limitations or restrictions under the
Securities Act and under state securities or blue sky laws (other
than requiring minimum transfers in blocks having an aggregate
principal or liquidation amount, as the case may be, of $100,000).
In connection with the Exchange Offer, the Corporation
and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period
of not less than 30 days after the date notice thereof is mailed to
the Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
(iii) utilize the services of the Depositary for the Exchange
Offer;
(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
Business Day of the Exchange Period, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission
or letter setting forth the name of such Holder, the principal
amount of Securities delivered for exchange, and a statement that
such Holder is withdrawing his election to have such Securities
exchanged;
(v) notify each Holder that any Security not tendered by such
Holder in the Exchange Offer will remain outstanding and continue
to accrue interest or accumulate distributions, as the case may be,
but will not retain any rights under this Agreement (except in the
case of the Initial Purchasers and Participating Broker-Dealers as
provided herein); and
(vi) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
If any Initial Purchaser determines upon advice of its
outside counsel that it is not eligible to participate in the
Exchange Offer with respect to the exchange of Securities consti-
tuting any portion of an unsold allotment in the initial distri-
bution, as soon as practicable upon receipt by the Corporation and
the Trust of a written request from such Initial Purchaser, the
Corporation and the Trust, as applicable, shall issue and deliver
to such Initial Purchaser in exchange (the "Private Exchange") for
the Securities held by such Initial Purchaser, a like liquidation
amount of Capital Securities of the Trust or, in the event the
Trust is liquidated and Subordinated Debentures are distributed, a
like principal amount of the Subordinated Debentures of the
Corporation, together with the Exchange Guarantee, in each case
that are identical (except that such securities may bear a
customary legend with respect to restrictions on transfer pursuant
to the Securities Act) to the Exchange Securities (the "Private
Exchange Securities") and which are issued pursuant to the
Indenture, the Declaration or the Guarantee (which provides that
the Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture or the Declaration, as
applicable (other than requiring minimum transfers in blocks having
an aggregate principal or liquidation amount, as the case may be,
of $100,000), and that the Exchange Securities, the Private Ex-
change Securities and the Securities will vote and consent together
on all matters as one class and that neither the Exchange Securi-
ties, the Private Exchange Securities nor the Securities will have
the right to vote or consent as a separate class on any matter).
The Private Exchange Securities shall be of the same series as the
Exchange Securities and the Corporation and the Trust will seek to
cause the CUSIP Service Bureau to issue the same CUSIP Numbers for
the Private Exchange Securities as for the Exchange Securities
issued pursuant to the Exchange Offer.
As soon as practicable after the close of the Exchange
Offer and, if applicable, the Private Exchange, the Corporation and
the Trust, as the case requires, shall:
(i) accept for exchange all Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer
or the Private Exchange;
(ii) deliver, or cause to be delivered, to the applicable
Trustee for cancellation all Securities or portions thereof so
accepted for exchange by the Corporation; and
(iii) issue, and cause the applicable Trustee under the
Indenture, the Declaration or the Guarantee, as applicable, to
promptly authenticate and deliver to each Holder, new Exchange
Securities or Private Exchange Securities, as applicable, equal in
principal amount to the principal amount of the Subordinated
Debentures or equal in liquidation amount to the liquidation amount
of the Capital Securities (together with the guarantee thereof) as
are surrendered by such Holder.
Distributions on each Exchange Capital Security and
interest on each Exchange Debenture and Private Exchange Security
issued pursuant to the Exchange Offer and in the Private Exchange
will accrue from the last date on which a Distribution or interest
was paid on the Capital Security or the Subordinated Debenture
surrendered in exchange therefor or, if no Distribution or interest
has been paid on such Capital Security or Subordinated Debenture,
from the Issue Date. To the extent not prohibited by any law or
applicable interpretation of the staff of the SEC, the Corporation
and the Trust shall use their reasonable best efforts to complete
the Exchange Offer as provided above, and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and
other applicable laws in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the SEC. Each Holder of
Registrable Securities who wishes to exchange such Registrable
Securities for Exchange Securities in the Exchange Offer will be
required to make certain customary representations in connection
therewith, including, in the case of any Holder of Capital
Securities, representations that (i) it is not an Affiliate of the
Trust or the Corporation, (ii) the Exchange Securities to be
received by it were acquired in the ordinary course of its business
and (iii) at the time of the Exchange Offer, it has no arrangement
with any person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Capital Securities.
The Corporation and the Trust shall inform the Initial Purchasers,
after consultation with the applicable Trustees, of the names and
addresses of the Holders to whom the Exchange Offer is made, and
the Initial Purchasers shall have the right to contact such Holders
and otherwise facilitate the tender of Registrable Securities in
the Exchange Offer.
Upon consummation of the Exchange Offer in accordance
with this Section 2(a), the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to
Registrable Securities that are Private Exchange Securities and
Exchange Securities held by Participating Broker-Dealers, and the
Corporation and the Trust shall have no further obligation to
register the Registrable Securities (other than Private Exchange
Securities) held by any Holder pursuant to Section 2(b) of this
Agreement.
(b) Shelf Registration. In the event that (i) the
Corporation, the Trust or the Majority Holders reasonably deter-
mine, after conferring with counsel (which may be in-house
counsel), that the Exchange Offer Registration provided in Section
2(a) above is not available under applicable law and regulations
and currently prevailing interpretations of the staff of the SEC,
(ii) the Corporation shall determine in good faith that there is a
reasonable likelihood that, or a material uncertainty exists as to
whether, consummation of the Exchange Offer would result in (x) the
Trust becoming subject to federal income tax with respect to income
received or accrued on the Subordinated Debentures or the Exchange
Debentures (collectively, the "Debentures"), (y) interest payable
by the Corporation on the Debentures not being deductible by the
Corporation for United States federal income tax purposes or (z)
the Trust becoming subject to more than a de minimus amount of
other taxes, duties or governmental charges, (iii) the Exchange
Offer Registration Statement is not declared effective within 180
days of the Issue Date or (iv) upon the request of any Initial Pur-
chaser with respect to any Registrable Securities held by it, if
such Initial Purchaser is not permitted, in the opinion of Xxxxxxx,
Spidi, Sloane & Xxxxx, P.C., pursuant to applicable law or applica-
ble interpretations of the staff of the SEC, to participate in the
Exchange Offer and thereby receive securities that are freely
tradeable without restriction under the Securities Act and
applicable blue sky or state securities laws (any of the events
specified in (i)-(iv) being a "Shelf Registration Event" and the
date of occurrence thereof, the "Shelf Registration Event Date"),
then in addition to or in lieu of conducting the Exchange Offer
contemplated by Section 2(a), as the case may be, the Corporation
and the Trust shall use their reasonable best efforts to cause to
be filed as promptly as practicable after such Shelf Registration
Event Date, as the case may be, and, in any event, within 45 days
after such Shelf Registration Event Date (which shall be no earlier
than 75 days after the Closing Time), a Shelf Registration
Statement providing for the sale by the Holders of all of the
Registrable Securities (except in the case of clause (iv) above in
which case the Shelf Registration Statement need cover only the
Registrable Securities held by the Initial Purchasers) and shall
use its reasonable best efforts to have such Shelf Registration
Statement declared effective by the SEC as soon as practicable. No
Holder of Registrable Securities shall be entitled to include any
of its Registrable Securities in any Shelf Registration pursuant to
this Agreement unless and until such Holder furnishes to the
Corporation and the Trust in writing, within 15 days after receipt
of a request therefor, such information as the Corporation and the
Trust may, after conferring with counsel with regard to information
relating to Holders that would be required by the SEC to be
included in such Shelf Registration Statement or Prospectus
included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each Holder
as to which any Shelf Registration is being effected agrees to
furnish to the Corporation and the Trust all information with
respect to such Holder necessary to make the information previously
furnished to the Corporation by such Holder not materially mislead-
ing.
The Corporation and the Trust agree to use their
reasonable best efforts to keep the Shelf Registration Statement
continuously effective and usable for resales for (a) the Rule
144(k) Period in the case of a Shelf Registration Statement filed
pursuant to Section 2(b)(i), (ii) or (iii) or (b) 180 days in the
case of a Shelf Registration Statement filed pursuant to Section
2(b)(iv) (subject in each case to extension pursuant to the last
paragraph of Section 3 hereof), or for such shorter period which
will terminate when all of the 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 Corporation and the Trust shall not
permit any securities other than Registrable Securities to be
included in the Shelf Registration. The Corporation 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
and notify each such Holder when the Shelf Registration has become
effective. The Corporation 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 Corporation for such Shelf
Registration Statement or by the Securities Act or by any other
rules and regulations thereunder for shelf registrations, and the
Corporation and the Trust agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Expenses. The Corporation, as issuer of the
Subordinated Debentures, shall pay all Registration Expenses in
connection with any Registration Statement filed pursuant to
Section 2(a) and/or 2(b) hereof and will reimburse the Initial
Purchasers for the reasonable fees and disbursements of Xxxxxxx,
Spidi, Sloane & Xxxxx, P.C., counsel for the Initial Purchasers,
incurred in connection with the Exchange Offer and, if applicable,
the Private Exchange, or any one other counsel designated in
writing by the Majority Holders to act as counsel for the Holders
of the Registrable Securities in connection with a Shelf Regis-
tration Statement, which other counsel shall be reasonably satis-
factory to the Corporation. Except as provided herein, each Holder
shall pay all expenses of its counsel and any of its other advisors
or experts, 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 State-
ment.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be
deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant
to such Exchange Offer Registration Statement or Shelf Registration
Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have been
effective during the period of such interference, until the
offering of Registrable Securities pursuant to such Registration
Statement may legally resume. The Corporation and the Trust will
be deemed not to have used their reasonable best efforts to cause
the Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, to become, or to remain, effective
during the requisite period if either of them voluntarily takes any
action that would result in any such Registration Statement not
being declared effective or that would result in the Holders of
Registrable Securities covered thereby not being able to exchange
or offer and sell such Registrable Securities during that period
unless such action is required by applicable law.
(e) Liquidated Damages. In the event that:
(i) neither the Exchange Offer Registration
Statement is filed with the SEC on or prior to the 150th day after
the Issue Date nor a Shelf Registration Statement is filed with the
SEC on or prior to the 45th day after the Shelf Registration Event
Date in respect of a Shelf Registration Event attributable to any
of the events set forth in Sections 2(b)(i), (ii) and (iii)
(provided that in no event shall such date be earlier than 75 days
after the Issue Date), then commencing on the day after the appli-
cable required filing date, liquidated damages ("Liquidated
Damages") shall accrue on the principal amount of the Subordinated
Debentures, and additional distributions ("Additional Distribu-
tions") shall accumulate on the liquidation amount of the Trust
Securities (as such term is defined in the Declaration), each at a
rate of .25% per annum; or
(ii) neither the Exchange Offer Registration State-
ment nor a Shelf Registration Statement is declared effective by
the SEC on or prior to the 180th day after the Issue Date (in the
case of an Exchange Offer Registration Statement) or on or prior to
the later of (A) the 30th day after the date such Shelf Registra-
tion Statement was required to be filed and (B) the 180th day after
the Issue Date (in the case of a Shelf Registration Statement, in
respect of a Shelf Registration Event attributable to any of the
events set forth in Sections 2(b)(i), (ii) and (iii)), then, com-
mencing on the 181st day after the Issue Date (in the case of an
Exchange Offer Registration Statement) or the later of (A) the 31st
day after the day such Shelf Registration Statement was required to
be filed and (B) the 181st day after the Issue Date (in the case of
a Shelf Registration Statement, in respect of a Shelf Registration
Event attributable to any of the events set forth in Sections
2(b)(i), (ii) and (iii)), 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;
(iii) (A) the Trust has not exchanged Exchange
Capital Securities or the Corporation has not exchanged Exchange
Guarantees or Exchange Subordinated Debentures for all Capital
Securities, Guarantees or Subordinated Debentures, as the case may
be, validly tendered, in accordance with the terms of the Exchange
Offer on or prior to the 45th day after the date on which the
Exchange Offer Registration Statement was declared effective or (B)
if applicable, the Shelf Registration Statement in respect of a
Shelf Registration Event attributable to any of the events set
forth in Sections 2(b)(i), (ii) and (iii) has been declared effec-
tive and such Shelf Registration Statement ceases to be effective
or usable for resales (whether as a result of an event contemplated
by Section 3(e) or otherwise) at any time prior to the expiration
of the Rule 144(k) Period (other than after such time as all
Securities have been disposed of thereunder or otherwise cease to
be Registrable Securities), then Liquidated Damages shall accrue on
the principal amount of Subordinated Debentures, and Additional
Distributions shall accumulate on the liquidation amount of the
Trust Securities, each at a rate of .25% per annum commencing on
(x) the 46th day after such effective date, in the case of (A)
above, or (y) the day such Shelf Registration Statement ceases to
be effective or usable for resales in the case of (B) above;
provided, however, that neither the Liquidated Damages rate on the
Subordinated Debentures, nor the Additional Distribution rate on
the liquidation amount of the Trust Securities, may exceed in the
aggregate .25% per annum; provided, further, however, that (1) upon
the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (i) above), (2) upon
the effectiveness of the Exchange Offer Registration Statement or
a Shelf Registration Statement (in the case of clause (ii) above),
or (3) upon the exchange of Exchange Capital Securities, Exchange
Guarantees and Exchange Debentures for all Capital Securities,
Guarantees and Subordinated Debentures validly tendered (in the
case of clause (iii)(A) above), or at such time as the Shelf
Registration Statement which had ceased to remain effective or
usable for resales again becomes effective and usable for resales
(in the case of clause (iii)(B) above), Liquidated Damages on the
principal amount of the Subordinated Debentures and Additional
Distributions on the liquidation amount of the Trust Securities as
a result of such clause (or the relevant subclause thereof) shall
cease to accrue and accumulate.
Any amounts of Liquidated Damages and Additional Distributions
due pursuant to Section 2(e)(i), (ii) or (iii) above will be
payable in cash on the next succeeding January 1 and July 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.
(f) Specific Enforcement. Without limiting the remedies
available to the Holders, the Corporation and the Trust acknowledge
that any failure by the Corporation or the Trust to comply with its
obligations under Section 2(a) and Section 2(b) hereof may result
in material irreparable injury to the Holders for which there is no
adequate remedy at law, that it would not be possible to measure
damages for such injuries precisely and that, in the event of any
such failure, any Holder may obtain such relief as may be required
to specifically enforce the Corporation's and the Trust's obliga-
tions under Section 2(a) and Section 2(b) hereof.
(g) Distribution of Subordinated Debentures. Notwith-
standing any other provisions of this Agreement, in the event that
Subordinated Debentures are distributed to holders of Capital
Securities in liquidation of the Trust pursuant to the Declaration,
(i) all references in this Section 2 and in Section 3 to Securi-
ties, Registrable Securities and Exchange Securities shall not
include the Capital Securities and Capital Securities Guarantee or
Exchange Capital Securities and Exchange Capital Securities
Guarantee issued or to be issued in exchange therefor in the
Exchange Offer and (ii) all requirements for action to be taken by
the Trust in this Section 2 and in Section 3 shall cease to apply
and all requirements for action to be taken by the Corporation in
this Section 2 and in Section 3 shall apply to the Subordinated
Debentures and Exchange Debentures issued or to be issued in
exchange therefor in the Exchange Offer.
3. Registration Procedures. In connection with the
obligations of the Corporation and the Trust with respect to the
Registration Statements pursuant to Sections 2(a) and 2(b) hereof,
the Corporation and the Trust shall:
(a) prepare and file with the SEC a Registration
Statement or Registration Statements as prescribed by Sections
2(a) and 2(b) hereof within the relevant time period specified
in Section 2 hereof on the appropriate form under the Securi-
ties Act, which form (i) shall be selected by the Corporation
and the Trust, (ii) shall, in the case of a Shelf Registra-
tion, be available for the sale of the Registrable Securities
by the selling Holders thereof and, in the case of an Exchange
Offer, be available for the exchange of Registrable Securi-
ties, and (iii) shall comply as to form in all material re-
spects 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
Registration Statement to become effective and remain effec-
tive (and, in the case of a Shelf Registration Statement,
usable for resales) in accordance with Section 2 hereof; pro-
vided, however, that if (1) such filing is pursuant to Sec-
tion 2(b), or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securi-
ties, before filing any Registration Statement or Prospectus
or any amendments or supplements thereto, the Corporation and
the Trust shall furnish to and afford the Holders of the
Registrable Securities and each such Participating Broker-Dea-
ler, as the case may be, covered by such Registration State-
ment, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be
filed. The Corporation and the Trust shall not file any
Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such
document if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the
managing underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement effective
for the Effectiveness Period or the Applicable Period, as the
case may be; and cause each Prospectus to be supplemented, if
so determined by the Corporation 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 applica-
ble to it with respect to the disposition of all securities
covered by each Registration Statement during the Effective-
ness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution
by the selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities included in the Shelf
Registration Statement, at least three Business Days prior to
filing, that a Shelf Registration Statement with respect to
the Registrable Securities is being filed and advising such
Holder that the distribution of Registrable Securities will be
made in accordance with the method selected by the Majority
Holders; and (ii) furnish to each Holder of Registrable
Securities included in the Shelf Registration Statement and to
each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as
such Holder or underwriter may reasonably request, in order to
facilitate the public sale or other disposition of the
Registrable Securities; and (iii) consent to the use of the
Prospectus or any amendment or supplement thereto by each of
the selling Holders of Registrable Securities included in the
Shelf Registration Statement in connection with the offering
and sale of the Registrable Securities covered by the Prospec-
tus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, use its
reasonable best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky"
laws of such jurisdictions by the time the applicable Regis-
tration 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
Corporation and the Trust shall not be required to (i) qualify
as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) file any general
consent to service of process in any jurisdiction where it
would not otherwise be subject to such service of process or
(iii) subject itself to taxation in any such jurisdiction if
it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if
Participating Broker-Dealers from whom the Corporation or the
Trust has received prior written notice that they will be
utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof, are
seeking to sell Exchange Securities and are required to
deliver Prospectuses, promptly notify each Holder of Registra-
ble Securities, or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters, if
any, and promptly confirm such notice in writing (i) when a
Registration Statement has become effective and when any post-
effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration
Statement or Prospectus or for additional information after
the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any
stop order suspending the effectiveness of a Registration
Statement or the qualification of the Registrable Securities
or the Exchange Securities to be offered or sold by any
Participating Broker-Dealer in any jurisdiction described in
paragraph 3(d) hereof or the initiation of any proceedings for
that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the
closing of any sale of Registrable Securities covered thereby,
the representations and warranties of the Corporation and the
Trust contained in any purchase agreement, securities sales
agreement or other similar agreement cease to be true and
correct in all material respects, (v) of the happening of any
event or the failure of any event to occur or the discovery of
any facts or otherwise, during the Effectiveness Period which
makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which
causes such Registration Statement or Prospectus to omit to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, and (vi) the Corporation and the
Trust's reasonable determination that a post-effective
amendment to the Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the with-
drawal of any order suspending the effectiveness of a Regis-
tration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities included within the coverage
of such Shelf Registration Statement, without charge, one
conformed copy of each Registration Statement relating to such
Shelf Registration and any post-effective amendment thereto
(without documents incorporated therein by reference or
exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities to facilitate
the timely preparation and delivery of certificates represent-
ing Registrable Securities to be sold and not bearing any
restrictive legends (other than with respect to restrictions
requiring minimum transfers in blocks having an aggregate
principal or liquidation amount, as the case may be, of
$100,000) and in such denominations (consistent with the
provisions of the Indenture and the Declaration) and regis-
tered in such names as the selling Holders or the underwriters
may reasonably request at least two Business Days prior to the
closing of any sale of Registrable Securities pursuant to such
Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, use its reasonable best efforts to prepare a
supplement or post-effective amendment to such Registration
Statement or the related Prospectus or any document incorpo-
rated 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 Corporation has amended or supple-
mented the Prospectus to correct such misstatement or omission
and has delivered copies of the amended or supplemented
Prospectus to such Holder (or Participating Broker-Dealer, as
the case may be) or the Company has given notice that the sale
of the Registrable Securities may be resumed, as the case may
be, such delivery and notice to be given or made promptly;
(j) obtain a CUSIP number for all Exchange Capital
Securities and the Capital Securities (and if the Trust has
made a distribution of the Subordinated Debentures to the
Holders of the Capital Securities, the Subordinated Debentures
or the Exchange Debentures) as the case may be, not later than
the effective date of a Registration Statement, and provide
the Trustee with printed certificates for the Exchange Securi-
ties or the Registrable Securities, as the case may be, in a
form eligible for deposit with the Depositary;
(k) cause the Indenture, the Declaration, the Guarantee
and the Exchange Guarantee to be qualified under the Trust
Indenture Act of 1939 (the "TIA") in connection with the
registration of the Exchange Securities or Registrable
Securities, as the case may be, and effect such changes to
such documents as may be required for them to be so qualified
in accordance with the terms of the TIA and execute, and use
its 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;
(l) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are custom-
ary in underwritten offerings and take all such other appro-
priate actions in connection therewith as are reasonably
requested by the holders of at least 25% in aggregate prin-
cipal or liquidation amount, as the case may be, of the
Registrable Securities in order to expedite or facilitate the
registration or the disposition of the Registrable Securities;
(m) in the case of a Shelf Registration, whether or not
an underwriting agreement is entered into and whether or not
the registration is an underwritten registration, if requested
by (x) the Initial Purchasers, in the case where such Initial
Purchasers holds Securities acquired by it as part of its
initial allotment and (y) Holders of at least 25% in aggregate
principal or liquidation amount, as the case may be, of the
Registrable Securities covered thereby: (i) make such repre-
sentations and warranties to Holders of such Registrable Secu-
rities and the underwriters (if any), with respect to the
business of the Trust, the Corporation 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 of debt securities to underwriters in underwritten
offerings, and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Corporation 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 under-
writers (if any) covering the matters customarily covered in
opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such underwriters
(it being agreed that the matters to be covered by such
opinion may be subject to customary qualifications and excep-
tions); (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 Corporation and the Trust (and, if neces-
sary, any other independent certified public accountants of
any subsidiary of the Corporation and the Trust or of any
business acquired by the Corporation and the Trust for which
financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to
each of the underwriters, such letters to be in customary form
and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and
such other matters as reasonably requested by such underwrit-
ers 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 or liquidation
amount, as the case may be, of Registrable Securities covered
by such Registration Statement and the managing underwriters
and agents) customary for such agreements 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 underwrit-
ing agreement, or as and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, make reasonably
available for inspection by any selling Holder of such
Registrable Securities or Participating Broker-Dealer, as
applicable, who certifies to the Corporation and the Trust
that it has a current intention to sell Registrable Securities
pursuant to the Shelf Registration, any underwriter partici-
pating in any such disposition of Registrable Securities, if
any, and any attorney, accountant or other agent retained by
any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collec-
tively, the "Inspectors"), at the offices where normally kept,
during the Corporation's normal business hours, all financial
and other records, pertinent corporate documents and proper-
ties of the Trust, the Corporation 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 Corporation 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 Corporation and the
Trust determine, in good faith, to be confidential and any Re-
cords which it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement,
(ii) subject to the last sentence of this Section 3(n), the
release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or is
necessary in connection with any action, suit or proceeding or
(iii) the Information in such Records has been made generally
available to the public (other than by an Inspector or a
selling Holder in breach of its obligations hereunder). Each
selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree in
writing that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used
by it as the basis for any market transactions in the securi-
ties of the Trust or the Corporation unless and until such is
made generally available to the public through no fault of an
Inspector or a selling Holder or Participating Broker-Dealer.
Each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to further
agree in writing that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdic-
tion, or in connection with any action, suit or proceeding
give notice to the Corporation and allow the Corporation at
its expense to undertake appropriate action to prevent disclo-
sure 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 Corporation
after the effective date of a Registration Statement, which
statements shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer or a Private
Exchange, if requested by a Trustee, obtain an opinion of
counsel to the Corporation addressed to the Trustee for the
benefit of all Holders of Registrable Securities participating
in the Exchange Offer or the Private Exchange, as the case may
be, substantially to the effect that (i) the Corporation and
the Trust, as the case requires, has duly authorized, executed
and delivered the Exchange Securities and Private Exchange
Securities, and (ii) each of the Exchange Securities or the
Private Exchange Securities, as the case may be, constitutes
a legal, valid and binding obligation of the Corporation or
the Trust, as the case requires, enforceable against the
Corporation or the Trust, as the case requires, in accordance
with its respective terms (in each case, with customary excep-
tions);
(q) if an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by
Holders to the Corporation or the Trust, as applicable (or to
such other Person as directed by the Corporation or the Trust,
respectively), in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be, the Corpora-
tion or the Trust, as applicable, shall xxxx, or cause to be
marked, on such Registrable Securities delivered by such
Holders that such Registrable Securities are being canceled in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall such
Registrable Securities be marked as paid or otherwise
satisfied;
(r) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such Registrable
Securities and their respective counsel in connection with any
filings required to be made with the NASD;
(s) take all other steps necessary to effect the
registration of the Registrable Securities covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," which
section shall be reasonably acceptable to the Initial Purchas-
ers or another representative of the Participating
Broker-dealers, and which shall contain a summary statement of
the positions taken or policies made by the staff of the SEC
with respect to the potential "underwriter" status of any
broker-dealer (a "Participating Broker-Dealer") that holds
Registrable Securities acquired for its own account as a
result of market-making activities or other trading activities
and that will be the beneficial owner (as defined in Rule 13d-
3 under the Exchange Act) of Exchange Securities to be
received by such broker-dealer in the Exchange Offer, whether
such positions or policies have been publicly disseminated by
the staff of the SEC or such positions or policies, in the
reasonable judgment of the Initial Purchasers or such other
representative, represent the prevailing views of the staff of
the SEC, including a statement that any such broker-dealer who
receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the require-
ments of the Securities Act in connection with any resale of
such Exchange Securities, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Corporation the notice
referred to in Section 3(e), without charge, as many copies of
each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such Participating Broker-
Dealer may reasonably request (each of the Corporation and the
Trust hereby consents to the use of the Prospectus forming
part of the Exchange Offer Registration Statement or any
amendment or supplement thereto by any Person subject to the
prospectus delivery requirements of the Securities Act,
including all Participating Broker-Dealers, in connection with
the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto), (iii) use
its reasonable best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement
the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to
the prospectus delivery requirements of the Securities Act for
such period of time as such Persons must comply with such re-
quirements under the Securities Act and applicable rules and
regulations in order to resell the Exchange Securities;
provided, however, that such period shall not be required to
exceed 90 days (or such longer period if extended pursuant to
the last sentence of Section 3 hereof) (the "Applicable
Period"), and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer
holding Registrable Securities acquired for
its own account as a result of market-making
activities or other trading activities, it
will deliver a prospectus meeting the re-
quirements of the Securities Act in connection
with any resale of Exchange Securities re-
ceived in respect of such Registrable Secu-
rities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer
making the acknowledgment described in clause (x) and by
delivering a Prospectus in connection with the exchange of
Registrable Securities, the broker-dealer will not be deemed
to admit that it is an underwriter within the meaning of the
Securities Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Corporation and the Trust agree to deliver to
the Initial Purchasers or to another representative of the
Participating Broker-Dealers, if requested by the Initial
Purchasers or such other representative of Participating Bro-
ker-Dealers, on behalf of the Participating Broker-Dealers
upon consummation of the Exchange Offer (i) an opinion of
counsel in form and substance reasonably satisfactory to the
Initial Purchasers or such other representative of the Par-
ticipating Broker-Dealers, covering the matters customarily
covered in opinions requested in connection with Exchange
Offer Registration Statements and such other matters as may be
reasonably requested (it being agreed that the matters to be
covered by such opinion may be subject to customary qualifica-
tions and exceptions), (ii) an officers' certificate contain-
ing certifications substantially similar to those set forth in
Section 5(f) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public
offering of debt securities and (iii) as well as upon the
effectiveness of the Exchange Offer Registration Statement, a
comfort letter, in each case, in customary form if permitted
by Statement on Auditing Standards No. 72.
The Corporation or the Trust may require each seller of
Registrable Securities as to which any registration is being
effected to furnish to the Corporation or the Trust, as applicable,
such information regarding such seller as may be required by the
staff of the SEC to be included in a Registration Statement. The
Corporation or the Trust may exclude from such registration the
Registrable Securities of any seller who fails to furnish such
information within a reasonable time after receiving such request.
The Corporation shall have no obligation to register under the
Securities Act the Registrable Securities of a seller who so fails
to furnish such information.
In the case of (1) a Shelf Registration Statement, or (2)
Participating Broker-Dealers who have notified the Corporation and
the Trust that they will be utilizing the Prospectus contained in
the Exchange Offer Registration Statement as provided in Section
3(t) hereof, are seeking to sell Exchange Securities and are
required to deliver Prospectuses, each Holder agrees that, upon
receipt of any notice from the Corporation or the Trust of the
happening of any event of the kind described in Section 3(e)(ii),
3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(i)
hereof or until it is advised in writing (the "Advice") by the
Corporation and the Trust that the use of the applicable Prospectus
may be resumed, and, if so directed by the Corporation and the
Trust, such Holder will deliver to the Corporation or the Trust (at
the Corporation's or the Trust's expense, as the case requires) all
copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering
such Registrable Securities or Exchange Securities, as the case may
be, current at the time of receipt of such notice. If the
Corporation or the Trust shall give any such notice to suspend the
disposition of Registrable Securities or Exchange Securities, as
the case may be, pursuant to a Registration Statement, the
Corporation and the Trust shall use their reasonable best efforts
to file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to the Registration
Statement and shall extend the period during which such Registra-
tion Statement is required to be maintained effective and usable
for resales pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to
and including the date when the Corporation and the Trust shall
have made available to the Holders (x) copies of the supplemented
or amended Prospectus necessary to resume such dispositions or (y)
the Advice.
4. Indemnification and Contribution. (a) In connection
with any Registration Statement, the Corporation and the Trust
shall, jointly and severally, indemnify and hold harmless the
Initial Purchasers, each Holder, each underwriter who participates
in an offering of the Registrable Securities, each Participating
Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and each of their respective
partners, directors, officers, employees and agents, as follows:
(i) 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 state-
ment of a material fact contained in any Registration State-
ment (or any amendment thereto), covering Registrable Securi-
ties or Exchange Securities, including all documents incorpo-
rated 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 Prospec-
tus (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 pro-
ceeding by any court or governmental agency or body, commenced
or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
prior written consent of the Corporation; and
(iii) from and against any and all expenses whatsoever,
as incurred (including reasonable fees and disbursements of
counsel chosen by such Holder, such Participating
Broker-Dealer, or any underwriter (except to the extent other-
wise 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 subpara-
graph (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 Corporation or the Trust by
such Holder, such Participating Broker-Dealer or any underwriter
with respect to such Holder, Participating Broker-Dealer or any
underwriter, as the case may be, expressly for use in a Registra-
tion Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) and (ii) the Company and the Trust
shall not be liable to any such Holder, Participating Broker-
Dealer, any underwriter or controlling person, with respect to any
untrue statement or alleged untrue statement or omission or alleged
omission in any preliminary Prospectus to the extent that any such
loss, liability, claim, damage or expense of any Holder, Partici-
pating Broker-Dealer, any underwriter or controlling person results
from the fact that such Holder, any underwriter or Participating
Broker-Dealer sold Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such
sale, a copy of the final Prospectus as then amended or supple-
mented if the Corporation had previously furnished copies thereof
to such Holder, underwriter or Participating Broker-Dealer and the
loss, liability, claim, damage or expense of such Holder, under-
writer, Participating Broker-Dealer or controlling person results
from an untrue statement or omission of a material fact contained
in the preliminary Prospectus which was corrected in the final
Prospectus. Any amounts advanced by the Company or the Trust to an
indemnified party pursuant to this Section 4 as a result of such
losses shall be promptly returned to the Corporation 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 Corporation or the Trust.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Corporation, the Trust, any under-
writer and the other selling Holders and each of their respective
directors, officers (including each officer of the Corporation and
the Trust who signed the Registration Statement), employees and
agents and each Person, if any, who controls the Corporation, 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 a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information
furnished to the Corporation or the Trust by or on behalf of such
selling Holder with respect to such Holder expressly for use in
such Registration Statement (or any amendment thereto), or any such
Prospectus (or any amendment or supplement thereto); provided,
however, that in the case of a Shelf Registration Statement, no
such Holder shall be liable for any claims hereunder in excess of
the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration
Statement.
(c) Each indemnified party shall give 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, or, if it so elects within
a reasonable time after receipt of such notice, assume the defense
of any suit brought to enforce any such claim; but if it so elects
to assume the defense, such defense shall be conducted by counsel
chosen by it and approved by the indemnified party or parties which
approval shall not be unreasonably withheld. In the event that an
indemnifying party elects to assume the defense of any such suit
and retain such counsel, the indemnified party or parties shall
bear the fees and expenses of any additional counsel thereafter
retained by such indemnified party or parties; provided, however,
that the indemnified party or parties shall have the right to
employ counsel (in addition to local counsel) to represent the
indemnified party or parties who may be subject to liability
arising out of any action in respect of which indemnity may be
sought against the indemnifying party if, in the reasonable
judgment of counsel for the indemnified party or parties, there may
be legal defenses available to such indemnified party or parties
which are different from or in addition to those available to the
indemnifying party, in which event the fees and expenses of
appropriate separate counsel shall be borne by the indemnifying
party. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel (in addition to
local counsel), separate from 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
(i) 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 contribu-
tion 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 (x) 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 (y) 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 or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of
the indemnifying party of if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(d) In order to provide for just and equitable contri-
bution in circumstances under which any of the indemnity provisions
set forth in this Section 4 is for any reason held to be unavail-
able to the indemnified parties although applicable in accordance
with its terms, the Corporation, 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 Corporation, the Trust, and the Holders, as
incurred; provided that no Person guilty of fraudulent misrepre-
sentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation. As between the
Corporation, the Trust, and the Holders, such parties shall con-
tribute 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 Corporation 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
Corporation 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 Corporation 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 Corporation, the Trust and the Holders of the Regis-
trable 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 Corporation or the Trust, each officer of each of the
Corporation or the Trust who signed the Registration Statement, and
each Person, if any, who controls each of the Corporation 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 Corporation or the Trust.
5. Participation in an Underwritten Registration. No
Holder may participate in an underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in the underwriting arrangement
approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required
under the terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of Regis-
trable Securities covered by the Shelf Registration Statement who
desire to do so may sell the securities covered by such Shelf
Registration in an underwritten offering, subject to the provisions
of section 3(l) hereof. In any such underwritten offering, the
underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a
majority in aggregate principal amount or liquidation amount, as
applicable, of the Registrable Securities included in such offer-
ing; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Corporation and the Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the
Corporation or the Trust is subject to the reporting requirements
of Section 13 or 15 of the Exchange Act and any Registrable Securi-
ties remain outstanding, each of the Corporation and the Trust, as
the case may be, will file the reports required to be filed by it
under the Securities Act and Section 13(a) or 15(d) of the Exchange
Act and the rules and regulations adopted by the SEC thereunder,
provided 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 its securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to a prospective
purchaser as is necessary to permit sales of its securities
pursuant to Rule 144A under the Securities Act, and (c) take such
further action that is reasonable in the circumstances, in each
case, to the extent required from time to time to enable such
Holder to sell its Registrable Securities without registration
under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time, (ii) Rule 144A under the Securities
Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon
the request of any Holder of Registrable Securities, the Corpora-
tion 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 Corporation or the
Trust has not entered into, nor will the Corporation 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 Corporation'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
Corporation 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 that no
amendment, modification or supplement or waiver or consent to the
departure with respect to the provisions of Section 4 hereof shall
be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder of Registrable Securities.
Notwithstanding the foregoing sentence, (i) this Agreement may be
amended, without the consent of any Holder of Registrable Securi-
ties, by written agreement signed by the Corporation, the Trust and
the Initial Purchasers, to cure any ambiguity, correct or supple-
ment 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
Corporation, the Trust and the Initial Purchasers 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 Purchasers, 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 Purchasers, the Corporation
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 Corporation or
the Trust by means of a notice given in accordance with the provi-
sions of this Section 7(d), which address initially is, with
respect to the Initial Purchasers, the address set forth in the
Purchase Agreement; and (ii) if to the Corporation or the Trust,
initially at the Corporation'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 communi-
cations shall be concurrently delivered by the Person giving the
same to the Trustee, at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and
transferees of the Initial Purchasers, including, without limita-
tion 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 Purchasers and
any Participating Broker-Dealer shall be a third party beneficiary
of the agreements made hereunder between the Corporation 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 OR ANY OF THE MATTERS CONTEMPLATED
HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT. THE COMPANY, ON BEHALF OF ITSELF AND THE SUBSIDIARIES
(INCLUDING, WITHOUT LIMITATION, THE TRUST), IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
PATRIOT BANK CORP.
By:_______________________________
Name:
Title:
PATRIOT CAPITAL TRUST I
By:______________________________
Name:
Title: Administrative Trustee
By:_______________________________
Name:
Title: Administrative Trustee
Confirmed and accepted as of
the date first above
written:
SANDLER X'XXXXX & PARTNERS, X.X.
XXXXXX XXXXXXXXXX XXXXX INC.
By: SANDLER X'XXXXX & PARTNERS L.P.
by Sandler X'Xxxxx & Partners Corp.
the sole general partner
By:
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
