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Exhibit 4.8
SUMMIT CAPITAL TRUST I
$150,000,000 8.40% CAPITAL TRUST PASS-THROUGH SECURITIES(SM) (TRUPS(SM))
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
SUMMIT BANCORP.
REGISTRATION RIGHTS AGREEMENT
New York, New York
March 20, 1997
Salomon Brothers Inc
As Representative of the several Initial Purchasers
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Summit Capital Trust I (the "Trust"), a statutory business trust created
under the laws of the state of Delaware by Summit Bancorp. (the "Company"),
proposes to issue and sell to the Initial Purchasers (the "Initial Purchasers")
named in the Purchase Agreement of even date herewith (the "Purchase
Agreement"), for whom you are acting as representative (the "Representative"),
the 8.40% Capital Trust Pass-through Securities (the "Capital Securities") of
the Trust. The issue and sale of the Capital Securities pursuant to the Purchase
Agreement is referred to herein as the "Initial Placement." The Capital
Securities, together with the guarantee of the Company with respect thereto (the
"Guarantee") and the 8.40% Junior Subordinated Deferrable Interest Debentures
due 2027 of the Company (the "Subordinated Debt Securities"), are collectively
referred to herein as the "Registrable Securities." As an inducement to the
Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Initial Purchasers thereunder, the Company
and the Trust agree with you, (i) for your benefit and the benefit of the other
Initial Purchasers and (ii) for the benefit of the holders from time to time of
the Registrable Securities and the Exchange Securities (as defined below),
including the Initial Purchasers (each of the foregoing a "Holder" and together
the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
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"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Securities" has the meaning set forth in the preamble hereto.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"DTC" means The Depository Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Prospectus" means the Prospectus contained in the Exchange
Offer Registration Statement, as it may be amended or supplemented from time to
time.
"Exchange Offer Registration Period" means the 180-day period following
the consummation of the Registered Exchange Offer, exclusive of any period
during which any stop order shall be in effect suspending the effectiveness of
the Exchange Offer Registration Statement or the Company otherwise fails to
maintain continuous effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement of
the Company and the Trust on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" means the securities of the Company and the Trust
issued pursuant to a Registered Exchange Offer in the same aggregate principal
amount or in the same number or liquidation amount, as the case may be, and
containing terms that are identical in all material respects to the terms of the
Registrable Securities except (i) the Exchange Securities shall have been
registered for sale under the Act to Holders and (ii) the interest rate step-up
provisions in the Registrable Securities will be modified or eliminated, as
appropriate, in the Exchange Securities.
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"Exchanging Dealer" means any Holder (which may include the Initial
Purchasers) which is a broker-dealer electing to exchange Registrable
Securities, acquired for its own account as a result of market-making activities
or other trading activities, for Exchange Securities.
"Final Offering Memorandum" means the final Offering Memorandum issued in
connection with the Initial Placement and dated as of March 13, 1997 relating to
the Registrable Securities (including any and all exhibits thereto and any
information incorporated by reference therein).
"Guarantee" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
"Interest Payment Date" has the meaning set forth in Section 3(c) hereof.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities or the Exchange Securities, covered by
such Registration Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Registered Exchange Offer" means the offer to the Holders to issue and
deliver to such Holders, in exchange for the Registrable Securities, a like
principal amount, stated liquidation preference or number, as the case may be,
of the Exchange Securities.
"Registrable Securities" has the meaning set forth in the preamble hereto.
"Registration Statement" means any Exchange Offer Registration Statement
or Shelf Registration Statement that covers any of the Registrable Securities or
the Exchange Securities pursuant to the provisions of this Agreement, amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Representative" has the meaning set forth in the preamble hereto.
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"Shelf Registration" means a registration effected pursuant to Section 3
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement of
the Company and the Trust pursuant to the provisions of Section 3 hereof which
covers some or all of the Registrable Securities or Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Special Payment" has the meaning set forth in Section 3(c) hereof.
"Subordinated Debt Securities" has the meaning set forth in the preamble
hereto.
"Suspension Period" has the meaning set forth in Section 2(f) hereof.
"Trust" has the meaning set forth in the preamble hereto.
"underwriter" means any underwriter of Registrable Securities or Exchange
Securities in connection with an offering thereof under a Shelf Registration
Statement.
2. Registered Exchange Offer; Resales of Exchange Securities by Exchanging
Dealers; Private Exchange. (a) To the extent not prohibited by law or applicable
interpretations thereof by the staff of the Commission or unless the Company
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 a material adverse tax consequence to the Company, the Company
and the Trust shall prepare and, not later than 150 days following the Closing
Date, shall file with the Commission the Exchange Offer Registration Statement
with respect to the Registered Exchange Offer. The Company and the Trust shall
use their best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Act within 180 days of the Closing Date. The
Company and the Trust shall use their best efforts to consummate the Registered
Exchange Offer within 210 days of the Closing Date.
(b) Upon the date the Exchange Offer Registration Statement is declared
effective, the Company and the Trust shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company within
the meaning of the Act, acquires the Exchange Securities in the ordinary course
of such Holder's business and has no arrangements with any person to participate
in a public distribution (within the meaning of the Act) of the Exchange
Securities) to trade such Exchange Securities from and after their receipt
without any limitations or restrictions under the Act (other than as a result of
a Holder being an Exchanging Dealer) and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
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(c) In connection with the Registered Exchange Offer, the Company and the
Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 30
days (or longer if required by applicable law) after the date notice
thereof is mailed to the Holders;
(iii) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company and the Trust shall:
(i) accept for exchange and cancel all Registrable Securities
tendered and not validly withdrawn pursuant to the Registered Exchange
Offer;
(ii) issue Exchange Securities to each Holder in a principal amount
or liquidation amount, as the case may be, equal to the Registrable
Securities accepted for exchange and canceled pursuant to the Registered
Exchange Offer; and
(iii) issue Exchange Securities to each Initial Purchaser at its
request in exchange for Registrable Securities acquired by it as part of
the Initial Placement containing terms that are identical to the Exchange
Securities issued to Holders in the Registered Exchange Offer and use
their best efforts to cause the CUSIP Service Bureau to issue the same
CUSIP number for such Exchange Securities as is issued for the Exchange
Securities issued in the Registered Exchange Offer.
(e) The Company, the Trust and the Initial Purchasers on behalf of the
Holders hereby acknowledge that, in order to effect a Registered Exchange Offer
and to comply with clause (d)(iii) above, (i) the Company will be required to
issue new subordinated debt securities to the Trust in exchange for a like
principal amount of Subordinated Debt Securities and (ii) the Trust will be
required to issue new capital securities in exchange for a like liquidation
amount of Capital Securities. The parties hereto acknowledge that the Guarantee
by its express terms covers the Exchange Securities corresponding to the Capital
Securities as well as such Capital Securities. The parties hereto further
acknowledge that the new subordinated debt securities and capital securities
issuable as described in this paragraph, which collectively constitute the
Exchange Securities, shall be identical in all material respects to the
securities they replace, except that (x) such Exchange Securities issued
pursuant to the Exchange Offer shall be registered for sale under the Act to
Holders and (y) the interest and distribution rate step-up
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provisions in the securities being replaced by the Exchange Securities will be
eliminated in the Exchange Securities.
(f) The Initial Purchasers, the Company and the Trust acknowledge that,
pursuant to current interpretations by the staff of the Commission of Section 5
of the Act, and in the absence of an applicable exemption therefrom, each
Exchanging Dealer may be deemed an "underwriter" within the meaning of the Act
and, therefore, is required to deliver a Prospectus in connection with any
resales of any Exchange Securities received by such Exchanging Dealer pursuant
to the Registered Exchange Offer in exchange for Registrable Securities acquired
for its own account as a result of market-making activities or other trading
activities. Accordingly, the Company and the Trust shall:
(i) include the information substantially in the form set forth in
Annex A hereto on the cover of the Prospectus forming a part of the
Exchange Offer Registration Statement, in Annex B hereto in the forepart
of the Prospectus forming a part of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange Offer, and in
Annex C hereto in the underwriting or plan of distribution section of the
Prospectus forming a part of the Exchange Offer Registration Statement,
and such other information with respect to resales of the Exchange
Securities by Exchanging Dealers that the Commission may require in
connection therewith and include the information substantially in the form
set forth in Annex D hereto in the Letter of Transmittal delivered
pursuant to the Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act during the Exchange Offer
Registration Period for delivery by Exchanging Dealers in connection with
sales of Exchange Securities received pursuant to the Registered Exchange
Offer, as contemplated by Section 4(h) below; provided, however, that
during the Exchange Offer Registration Period, the Company or the Trust
may elect to suspend the right of the Initial Purchasers, Exchanging
Dealers or other Holders to utilize the Prospectus for purposes of
effecting resales of any Exchange Securities for no more than a total of
two periods, each of which shall not exceed 45 days (each a "Suspension
Period"). The Company or the Trust shall promptly notify the Initial
Purchasers, Exchanging Dealers or other Holders in writing of any such
election. The exercise of the right to effect a Suspension Period shall
not be deemed to extend the length of time of the Exchange Offer
Registration Period and shall not, for the purposes of this Agreement, be
deemed to constitute a suspension of the effectiveness of the Exchange
Offer Registration Statement.
3. Shelf Registration. (i) If, because of any change in law or applicable
interpretations thereof by the staff of the Commission, the Company and the
Trust determine upon the advice of their counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof, (ii)
if the Company shall determine in good faith that there is a reasonable
likelihood that, or a material uncertainty exists as to whether, consummation
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of the Exchange Offer would result in a material adverse tax consequence to the
Company, (iii) if for any other reason the Exchange Offer Registration Statement
is not declared effective by the Commission within 180 days of the Closing Date,
(iv) if any Initial Purchaser so requests with respect to Registrable Securities
acquired prior to the completion of the Registered Exchange Offer held by it
following consummation of the Registered Exchange Offer that are not "freely
tradable" Exchange Securities, (v) if any Holder that is a broker-dealer, is not
an affiliate of the Company or the Trust and is not eligible to participate in
the Registered Exchange Offer so requests with respect to Registrable Securities
held by it following the consummation of the Registered Exchange Offer that are
not "freely tradable" Exchange Securities (it being understood that, for
purposes of this Section 3, (x) the requirement that an Initial Purchaser
deliver a Prospectus containing the information required by Items 507 and/or 508
of Regulation S-K under the Act in connection with sales of Exchange Securities
acquired in exchange for such Registrable Securities shall result in such
Exchange Securities being not "freely tradable" but (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Securities acquired in the Registered Exchange Offer in exchange for Registrable
Securities acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not "freely
tradable"), the following provisions shall apply:
(a) The Company and the Trust shall, as promptly as practicable, file with
the Commission the Shelf Registration Statement covering resales of the
Registrable Securities or the Exchange Securities, as applicable, by the Holders
from time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement, and use their best
efforts to cause the Shelf Registration Statement to be declared effective under
the Act by the 210th day after the Closing Date; provided that with respect to
Exchange Securities received by an Initial Purchaser in exchange for Registrable
Securities constituting any portion of an unsold allotment, the Company and the
Trust may, if permitted by current interpretations by the Commission's staff,
file a post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of their obligations under this paragraph (a) with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement; and provided further, that with
respect to a Shelf Registration Statement required pursuant to clause (iii) of
the preceding paragraph, the consummation of a Registered Exchange Offer shall
relieve the Company and the Trust of their obligations under this Section 3(a)
but only in respect of their obligations under such clause (iii).
(b) The Company and the Trust shall each use its best efforts to keep
effective the Shelf Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be usable by Holders for a period
of three years from the date the Shelf Registration Statement is declared
effective by the Commission, or such shorter period that will terminate upon the
earlier of the following: (A) when all the Registrable Securities or Exchange
Securities, as applicable, covered by such Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement, (B) when all the
Subordinated Debt Securities or the Exchange Securities relating to such
Subordinated Debt Securities or the Exchange Securities
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relating to such Subordinated Debt Securities issued to Holders in respect of
Capital Securities or Exchange Securities that had not been sold pursuant to the
Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement or (C) when in the written opinion of counsel to the Company and the
Trust, all outstanding Registrable Securities or Exchange Securities held by
persons that are not affiliates of the Company or the Trust may be resold
without registration under the Act pursuant to Rule 144(k) under the Act or any
successor provision. Furthermore, the Company and the Trust shall each use its
best efforts, upon the effectiveness of the Shelf Registration Statement, to
promptly upon the request of any Holder to take any action reasonably necessary
to register the sale of any Registrable Securities or Exchange Securities held
pursuant to Section 2(d)(iii) hereof of such Holder and compliance by such
Holder with the terms hereof and to identify such Holder as a selling
securityholder, provided that such Holder provides the Company with all
information reasonably necessary to effect such registration. The Company and
the Trust shall be deemed not to have used their best efforts to keep the Shelf
Registration Statement effective during the requisite period if either the
Company or the Trust voluntarily takes any action that would result in Holders
of securities covered thereby not being able to offer and sell such securities
during that period, unless (i) such action is required by applicable law, or
(ii) such action is taken by the Company in good faith and for valid business
reasons (not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, so long as the Company
promptly thereafter complies with the requirements of Section 4(k) hereof, if
applicable.
(c) Except as described below, in the event that either (a) the Exchange
Offer Registration Statement is not filed with the Commission on or prior to the
150th day following the Closing Date, (b) the Exchange Offer Registration
Statement is not declared effective on or prior to the 180th day following the
Closing Date or (c) the Exchange Offer is not consummated or a Shelf
Registration Statement with respect to the Registrable Securities is not
declared effective by the Commission on or prior to the 210th day following the
Closing Date, interest will accrue (in addition to the stated interest on the
Registrable Securities) from and including the next day following each of (i)
such 150-day period in the case of clause (a) above, (ii) such 180-day period in
the case of clause (b) above, and (iii) such 210-day period in the case of
clause (c) above. In each case such additional interest (the "Special Payment")
will be payable in cash semiannually in arrears on each March 15 and September
15 of each year (each an "Interest Payment Date"), at a rate per annum equal to
0.25% of the principal amount or liquidation amount, as applicable, of the
Registrable Securities. The aggregate amount of Special Payment payable pursuant
to the above provisions will in no event exceed 0.25% per annum of the principal
amount or the liquidation amount, as applicable, of the Registrable Securities.
(d) Upon (x) the filing of the Exchange Offer Registration, if applicable,
as described above, after the 150-day period described in clause (a) of the
preceding paragraph, (y) the effectiveness of the Exchange Offer Registration
Statement (if applicable) after the 180-day period described in clause (b) of
the preceding paragraph or (z) the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement after the 210-day period
described in clause (c) of the preceding paragraph, the Special Payment payable
on the Registrable Securities from the date of such filing, effectiveness or
consummation, as the case may be, shall cease to accrue and all accrued and
unpaid Special Payments as of the occurrence
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of (x), (y) or (z) shall be paid to the holders of the Registrable Securities on
the next Interest Payment Date.
(e) In the event that a Shelf Registration Statement is declared effective
hereunder, if the Company or the Trust fails to keep such Shelf Registration
Statement continuously effective for the period required hereby, then from the
next day following such time as the Shelf Registration Statement is no longer
effective until the earlier of (i) the date that the Shelf Registration
Statement is again deemed effective, (ii) the date that is the third anniversary
(or such shorter period after which the Debentures may be transferred without
registration under the Securities Act pursuant to Rule 144(k) thereunder) of the
date of the original issuance of the Registrable Securities or (iii) the date as
of which all of the Registrable Securities covered by the Shelf Registration
Statement are sold pursuant thereto or may sold without registration under the
Securities Act, Special Payments shall accrue at a rate per annum equal to 0.25%
of the principal amount or liquidation amount, as applicable, of the Registrable
Securities and shall be payable in cash, semiannually in arrears on each
Interest Payment Date (to be increased to 0.50% when the Shelf Registration
Statement is no longer effective for 30 days or more), without prejudice to any
other claim that any Holder may have for any failure by the Company to obtain or
maintain continuous effectiveness of the Exchange Offer Registration Statement
or a Shelf Registration Statement in accordance with the terms of this
Agreement; it being understood that after the Registered Exchange Offer has been
consummated, no Special Payments shall accrue in respect of Registrable
Securities.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company and the Trust shall furnish to the Initial Purchasers,
prior to the filing thereof with the Commission, a copy of any Registration
Statement, and each amendment thereof and each amendment or supplement, if any,
to the Prospectus included therein and shall use their best efforts to reflect
in each such document, when so filed with the Commission, such comments as the
Initial Purchasers reasonably may propose.
(b) The Company and the Trust shall ensure that (i) any Registration
Statement and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto (and each document incorporated therein by
reference) complies in all material respects with the Act and the Exchange Act
and the respective rules and regulations thereunder, (ii) any Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any Prospectus forming part of any Registration Statement, and any
amendment or supplement to such Prospectus, does not as of the date thereof
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading.
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(c) (1) The Company and the Trust shall advise the Initial Purchasers and,
in the case of a Shelf Registration Statement, the Holders of securities covered
thereby, and, if requested by the Initial Purchasers or any such Holder, confirm
such advice in writing:
(i) when the Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus included therein or for
additional information.
(2) The Company and the Trust shall advise the Initial Purchasers and, in
the case of a Shelf Registration Statement, the Holders of securities covered
thereby, and, in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by the Initial
Purchasers or any such Holder or Exchanging Dealer, confirm such advice in
writing of:
(i) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(ii) the receipt by the Company or the Trust of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation or overtly
threatening of any proceeding for such purpose;
(iii) the happening of any event that requires the making of any
changes in the Registration Statement or the Prospectus so that, as of
such date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made);
(iv) the Company's or the Trust's determination that a post-effective
amendment to a Registration Statement would be appropriate; and
(v) the Company's election to effect any Suspension Period.
(d) The Company and the Trust shall use their best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order suspending the
effectiveness of any Registration Statement at the earliest possible time.
(e) The Company and the Trust shall furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement, without
charge, at least one copy of
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such Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits filed therewith (including those incorporated by
reference).
(f) The Company and the Trust shall, during the Shelf Registration Period,
deliver to each Holder of securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request in connection with resales of Registrable or Exchange Securities; and
the Company and the Trust each consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of securities in
connection with the offering and sale of the securities covered by the
Prospectus or any amendment or supplement thereto.
(g) The Company and the Trust shall furnish to each Exchanging Dealer that
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
filed therewith (including those incorporated by reference).
(h) The Company and the Trust shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer, without charge,
as many copies of the final Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer
in connection with a sale of Exchange Securities received by it pursuant to the
Registered Exchange Offer; and the Company and the Trust each consent to the use
of the Prospectus or any amendment or supplement thereto by any such Exchanging
Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any other offering of
securities pursuant to any Registration Statement, the Company and the Trust
shall register or qualify or cooperate with the Holders of securities included
therein and their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holders reasonably request in writing
and do any and all other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the securities covered by such
Registration Statement; provided, however, that in no event shall the Company or
the Trust be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would subject it
to general service of process or to taxation in any such jurisdiction where it
is not then so subject.
(j) The Company and the Trust shall cooperate with the Holders of
Registrable Securities or Exchange Securities, as the case may be, to facilitate
the timely preparation and delivery within the times required by normal-way
settlement of certificates representing securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in
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such authorized denominations and registered in such names as Holders may
request prior to sales of securities pursuant to such Registration Statement;
provided that, so long as certificates are held in book-entry form by DTC or a
successor depositary, the Company will not be required to deliver physical
certificates except in accordance with the rules and procedures of DTC or a
successor depositary.
(k) If (a) Shelf Registration is filed pursuant to Section 3 hereof,
or (b) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Act by any
Exchanging Dealer who seeks to sell Registrable Securities or Exchange
Securities during the Shelf Offer Registration Period or the Exchange Offer
Registration Period, as the case may be, upon the occurrence of any event
contemplated by paragraph 4(c)(2)(iii), 4(c)(2)(iv) or 4(c)(2)(v) hereof, the
Company and the Trust as promptly as practicable, consistent with the advice of
counsel to the Company regarding other legal obligations relating to such
filing, prepare and file with the Commission, at the sole expense of the
Company, a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder or to the purchasers of the Exchange Securities to whom
such Prospectus will be delivered by an Exchanging Dealer, any such Prospectus
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Notwithstanding any provisions hereof during the Exchange Offer
Registration Period, the Company or the Trust may elect to effect a Suspension
Period. The Company or the Trust shall promptly notify the Initial Purchasers,
Exchanging Dealers or other Holders in writing of any such election. The
exercise of the right to effect a Suspension Period shall not be deemed to
extend the length of time of the Exchange Offer Registration Period and shall
not, for the purposes of this Agreement, be deemed to constitute a suspension of
the effectiveness of the Exchange Offer Registration Statement.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Company and the Trust shall provide a CUSIP number for
the Capital Securities or the Exchange Securities corresponding to the Capital
Securities, as the case may be, registered under such Registration Statement. In
the event of and at the time of any distribution of the Subordinated Debt
Securities to Holders, the Company and the Trust shall provide a CUSIP number
for the Subordinated Debt Securities or the Exchange Securities corresponding to
the Subordinated Debt Securities and provide the applicable trustee with
certificates for such securities, in a form eligible for deposit with DTC. The
Company and the Trust shall use their reasonable best efforts to cause the CUSIP
Service Bureau to issue the same CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, delivered pursuant to a Registration
Statement as was originally issued for the Registrable Securities.
(m) The Company and the Trust shall use their best efforts to comply
with all applicable rules and regulations of the Commission to the extent and so
long as they are applicable to the Registered Exchange Offer, the Exchange Offer
Registration Statement or the
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Shelf Registration Statement and shall make generally available to their
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act.
(n) The Company and the Trust shall cause the indenture relating to
the Subordinated Debt Securities, the Capital Securities Guarantee and the
declaration of trust of the Trust pursuant to which the terms of the Capital
Securities are established, or any corresponding documents in respect of the
Exchange Securities, as the case may be, to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Company and the Trust shall, if requested, promptly
incorporate in a Prospectus supplement or post effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters reasonably
agree with the Company should be included therein and shall make all required
filings of such Prospectus supplement or post effective amendment as soon as
reasonably practicable after they are notified of the matters to be incorporated
in such Prospectus supplement or post effective amendment.
(p) In the case of any Shelf Registration Statement, the Company and
the Trust shall enter into such customary agreements (including an underwriting
agreement) and take all other appropriate actions, if any, in order to
facilitate the registration or the disposition of the Registrable Securities or
the Exchange Securities, as the case may be, to be registered thereunder.
(q) In connection therewith, if an underwriting agreement is entered
into, the Company and the Trust shall cause the same to contain indemnification
provisions and procedures no less favorable than those set forth in Section 6
(or such other provisions and procedures acceptable to the Managing
Underwriters, if any), with respect to all parties to be indemnified pursuant to
Section 6.
(r) In the case of any underwritten offering under a Shelf
Registration Statement or at the request of an Initial Purchaser to the extent
that an Initial Purchaser has Registrable Securities or Exchange Securities
eligible for resale thereunder, the Company and the Trust shall (i) make
reasonably available for inspection by a representative of the Holders of a
majority of the securities to be registered thereunder, any Initial Purchaser
(if applicable) and any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney, accountant or other agent
retained by any such Holders, Initial Purchaser or underwriter all relevant
financial and other records, pertinent corporate documents and properties of the
Company, its subsidiaries and the Trust; (ii) cause the Company's officers,
directors and employees and the trustees of the Trust to supply all relevant
information reasonably requested by the representative of the Holders, the
Initial Purchaser (if applicable) or any such underwriter, attorney, accountant
or agent in connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any information that
is designated in writing by the Company and the Trust, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders, the Initial Purchaser (if applicable) or any such
underwriter, attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available
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to the public generally or through a third party without an accompanying
obligation of confidentiality; (iii) make such representations and warranties to
the Holders of securities registered thereunder, the Initial Purchaser (if
applicable) and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings
and covering matters including , but not limited to, those set forth in the
Purchase Agreement; (iv) obtain opinions of counsel to the Company and the Trust
(who may be the general counsel of the Company) and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) in customary form and scope
addressed to each selling Holder, Initial Purchaser (if applicable) and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may
reasonably requested by such Holders, Initial Purchasers (if applicable) and
underwriters; (v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and if necessary, any
other independent certified accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of securities registered
thereunder, the Initial Purchaser (if applicable) and the underwriters, if any,
and covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings; and (vi) deliver such
customary documents and certificates as may be reasonably requested by any such
Holders, the Initial Purchaser (if applicable) or the Managing Underwriters, if
any, including those to evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company and the Trust. The foregoing actions set forth in
clauses (iii), (iv), (v) and (vi) of this Section 4(s) shall be performed at (A)
the effectiveness of such Registration Statement and each post effective
amendment thereto and (B) each closing under any underwriting or similar
agreement as and to the extent required thereunder.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm of
counsel designated by the majority of the Holders of the Registrable Securities
or Exchange Securities, as the case may be, covered by such Shelf Registration
Statement to act as counsel for the Holders in connection therewith.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company agrees to indemnify and hold harmless the
Trust, each Holder of securities covered thereby (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (including all documents
incorporated by referenced therein) as
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originally filed or in any amendment thereof, or in any preliminary prospectus
or Prospectus, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any such Holder specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses (as
defined herein) of, as provided in Section 6(d), any underwriters of Securities
registered under a Shelf Registration Statement, their officers and directors
and each person who controls such underwriters on substantially the same basis
as that of the indemnification of the Initial Purchasers and the selling Holders
provided in this Section 6(a) and shall, if requested by any Holder, enter into
an underwriting agreement reflecting such agreement, as provided in Section 4(q)
hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(h) hereof, each Exchanging Dealer) severally agrees
to indemnify and hold harmless the Company, the Trust, each of their directors,
trustees, administrators, officers and each person who controls the Company or
the Trust within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each such Holder, but only
with reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 or notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent the indemnifying party did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below);
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provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of one
such separate counsel (in addition to local counsel) designated by the
indemnified parties if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded, based upon written advice of
counsel, that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding or out of the portion of such claim, action, suit or
proceeding which is the subject of the settlement, compromise or consent.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser or any subsequent Holder of any Registrable
Security or Exchange Security be responsible, in the aggregate, for any amount
in excess of the purchase discount or commission applicable to such security, or
in the case of an Exchange Security, applicable to the Registrable Security
which was exchangeable into such Exchange Security, as set forth on the cover
page of the Final Offering Memorandum, nor shall any underwriter be responsible
for any amount in excess of the underwriting discount or commission applicable
to the securities purchased by such underwriter under the Registration Statement
which resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other
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relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Offering
Memorandum. Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions as set forth on the cover
page of the Final Offering Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Registrable
Securities or Exchange Securities, as applicable, registered under the Act.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. Relative fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
and the Trust within the meaning of either the Act or the Exchange Act, each
officer of the Company or trustee of the Trust who shall have signed the
Registration Statement and each director of the Company or trustee of the Trust
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, the
Company or the Trust any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Trust have not,
as of the date hereof, entered into, nor shall they, on or after the date
hereof, enter into, any agreement with respect to their securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company and the Trust have
obtained the written consent of the Holders of at least a majority in
liquidation amount of the Capital Securities then outstanding (or, after the
consummation of any Exchange Offer in accordance with Section 2 hereof, of
Exchange Securities then outstanding); provided that, with respect to any matter
that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each such Initial
Purchaser
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18
against which such amendment, qualification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the majority of
such affected Holders, determined on the basis of securities being sold rather
than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by
such Holder to the Company;
(ii) if to the Initial Purchasers, initially at the
respective addresses set forth in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at their
addresses set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received. The Initial Purchasers, the Company or the Trust by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company and the Trust thereto, subsequent Holders of Registrable Securities
and/or Exchange Securities. The Company and the Trust hereby agree to extend the
benefits of this Agreement to any Holder of Registrable Securities and/or
Exchange Securities and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
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19
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified number, or percentage of principal amount or
liquidation amount, as the case may be, of, Registrable Securities or Exchange
Securities is required hereunder, Registrable Securities or Exchange Securities,
as applicable, held by the Company or its Affiliates (other than subsequent
Holders of Registrable Securities or Exchange Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Registrable Securities or Exchange Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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Please confirm your agreement by having your authorized officer sign
a copy of this Registration Agreement in the space set forth below and returning
the signed copy to us.
Very truly yours,
SUMMIT BANCORP.
By:___________________________________
Name:
Title:
SUMMIT CAPITAL TRUST I
By: SUMMIT BANCORP.,
as Sponsor
By:___________________________________
Name:
Title:
Accepted:
SALOMON BROTHERS INC
By:___________________________________
Name:
Title:
Date: March 20, 1997
20
21
ANNEX A
Based on interpretations by the staff of the Securities and Exchange
Commission (the "Commission"), as set forth in no-action letters issued to third
parties, the Company and the Trust believe that the Exchange Securities issued
pursuant to the Exchange Offer may be offered for resale, resold or otherwise
transferred by holders thereof (other than any holder that is an "affiliate" of
the Company or the Trust as defined under Rule 405 of the Securities Act),
provided that such Exchange Securities are acquired in the ordinary course of
such holders' business and such holders are not engaged in, and do not intend to
engage in, a distribution of such Exchange Securities and have no arrangement or
understanding with any person to participate in the distribution of such
Exchange Securities. However, the staff of the Commission has not considered the
Exchange Offer in the context of a no-action letter, and there can be no
assurance that the staff of the Commission would make a similar determination
with respect to the Exchange Offer as in such other circumstances. By tendering
the Registrable Securities in exchange for Exchange Securities, each holder,
other than a broker-dealer, will represent to the Company and the Trust that:
(i) it is not an affiliate of the Company or the Trust (as defined under Rule
405 of the Securities Act); (ii) any Exchange Securities to be received by it
were acquired in the course of its ordinary business; and (iii) it is not
engaged in, and does not intend to engage in, a distribution of the Exchange
Securities and has no arrangement or understanding to participate in a
distribution of the Exchange Securities.
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Registrable
Securities where such Registrable Securities were acquired by such broker-dealer
as a result of market-making activities or other trading activities. The Company
and the Trust have agreed that, starting on the date on which the Exchange Offer
is consummated and ending on the close of business one year after such date,
they will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution."
22
ANNEX B
Based on interpretations by the staff of the Commission as set forth
in no-action letters issued to third parties, the Company and the Trust believe
that holders of Registrable Securities (other than any holder that is an
"affiliate" of the Company or the Trust as defined under Rule 405 of the
Securities Act) who exchange their Registrable Securities for Exchange
Securities pursuant to the Exchange Offer may offer such Exchange Securities for
resale, resell such Exchange Securities and otherwise transfer such Exchange
Securities without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such Exchange Securities are
acquired in the ordinary course of such holders' business and such holders are
not engaged in, and do not intend to engage in, a distribution of such Exchange
Securities and have no arrangement or understanding with any person to
participate in the distribution of such Exchange Securities. However, the staff
of the Commission has not considered the Exchange Offer in the context of a
no-action letter, and there can be no assurance that the staff of the Commission
would make a similar determination with respect to the Exchange Offer. Each
broker-dealer that receives Exchange Securities for its own account in exchange
for Registrable Securities, where such Registrable Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
23
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Registrable Securities where such Registrable Securities were
acquired as a result of market-making activities or other trading activities.
The Company and the Trust have agreed that, starting on the date on which the
Exchange Offer is consummated and ending on the close of business one year after
such date, they will make this Prospectus, as amended or supplemented, available
to any broker-dealer for use in connection with any such resale. In addition,
until , 199 , all dealers effecting transactions in the Exchange Securities may
be required to deliver a prospectus.
The Company and the Trust will not receive any proceeds from any
sale of Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market or
the New York Stock Exchange, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit on any
such resale of Exchange Securities and any commissions or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the date on which the Exchange Offer
is consummated, the Company and the Trust will promptly send additional copies
of this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal, subject
to the Company's election to exercise its right to effect any Suspension Period.
The Company and the Trust have agreed to pay all expenses incident to the
Exchange Offer (including the expenses of one counsel for the Holders of the
Registrable Securities) other than commissions or concessions of any brokers or
dealers and will indemnify the Holders of the Registrable Securities (including
any broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation S-K Items
507 and/or 508.]
24
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ___________________________________
Address: ___________________________________
___________________________________
Rider B
The undersigned acknowledges that this Exchange Offer is being made
by the Company and the Trust based upon the Company's and Trust's understanding
of an interpretation by the staff of the Securities and Exchange Commission (the
"Commission") as set forth in no-action letters issued to third parties, that
the Exchange Securities issued in exchange for Registrable Securities by holders
thereof (other than to holders that are "affiliates" of the Company or the Trust
within the meaning of Rule 405 under the Securities Act), may be so issued
without compliance with the registration and prospectus delivery provisions of
the Securities Act, provided that: (i) such holders are not affiliates of the
Company or the Trust within the meaning of Rule 405 under the Securities Act;
(ii) such Exchange Securities are acquired in the ordinary course of such
holders' business; and (iii) such holders are not engaged in, and do not intend
to engage in, a distribution of such Exchange Securities and have no arrangement
or understanding with any person to participate in the distribution of such
Exchange Securities. However, the staff of the Commission has not considered the
Exchange Offer in the context of a no-action letter and there can be no
assurance that the staff of the Commission would make a similar determination
with respect to the Exchange Offer as in other circumstances. If a holder of
Registrable Securities is an affiliate of the Company, or is engaged in or
intends to engage in a distribution of the Exchange Securities or has any
arrangement or understanding with respect to the distribution of the Exchange
Securities to be acquired pursuant to the Exchange Offer, such holder could not
rely on the applicable interpretations of the staff of the Commission and must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any secondary resale transaction. If the
undersigned is a broker-dealer that will receive Exchange Securities for its own
account in exchange for Registrable Securities, it represents that the
Registrable Securities to be exchanged for Exchange Securities were acquired by
it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
