Exhibit 4.9
LIQUIDATED DAMAGES AGREEMENT
THIS LIQUIDATED DAMAGES AGREEMENT (the "Agreement") is made and
entered into as of May 1, 1997 among BANKNORTH GROUP, INC., a Delaware
corporation (the "Company"), BANKNORTH CAPITAL TRUST I, a business trust formed
under the laws of the state of Delaware (the "Trust"), and SANDLER X'XXXXX &
PARTNERS, L.P. ("Sandler X'Xxxxx" or the "Initial Purchaser").
WHEREAS, as an inducement to the Initial Purchaser to enter into the
Purchase Agreement, dated April 28, 1997 (the "Purchase Agreement"), among the
Company, the Trust and the Initial Purchaser (providing for, among other things,
the sale by the Trust to the Initial Purchaser of 30,000 of the Trust's Series A
10.52% Capital Securities, liquidation amount $1,000 per Capital Security (the
"Capital Securities"), the proceeds of which will be used by the Trust to
purchase Series A 10.52% Junior Subordinated Deferrable Interest Debentures due
May 1, 2027 of the Company (the "Subordinated Debentures")), and as a condition
to the several obligations of the Initial Purchaser thereunder, the Company and
the Trust have agreed to provide to the Initial Purchaser and its direct and
indirect transferees certain registration and related rights pursuant to and in
accordance with the terms of the Registration Rights Agreement, of even date
herewith (the "Registration Rights Agreement"), among the Company, the Trust and
the Initial Purchaser; and
WHEREAS, notwithstanding the fact that the Company and the Trust
have consummated or will consummate an Exchange Offer, pursuant to Section 2(b)
of the Registration Rights Agreement, the Initial Purchaser may, under certain
circumstances, require the Company and the Trust to file a Shelf Registration
Statement for the resale of certain Registrable Securities held by it; and
WHEREAS, the Registration Rights Agreement contains certain
provisions concerning the time within which the Company and the Trust must file
the Shelf Registration Statement and the period for which such Shelf
Registration Statement must remain effective and usable for resales; and
WHEREAS, the Company, the Trust and the Initial Purchaser desire to
provide for the payment of liquidated damages by the Company directly to the
Initial Purchaser in the event that the Company and the Trust fail to comply
with such contractual provisions, as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
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i. Definitions. Capitalized terms used herein (including in the
foregoing recitals) but not defined shall have the meanings given to such terms
in the Registration Rights Agreement, except that (a) the term "Shelf
Registration Statement" shall refer only to a Shelf Registration Statement filed
by the Company and the Trust pursuant to Section 2(b) of the Registration Rights
Agreement, and (b) the term "Registrable Securities" shall refer only to those
Registrable Securities held at such time by the Initial Purchaser.
ii. Payment of Liquidated Damages. (a) In the event that (i) the
Shelf Registration Statement is not filed with the SEC on or prior to the 45th
day after a request for such filing is made by the Initial Purchaser (provided
that in no event shall such date be required to be earlier than 90 days after
the Issue Date), or (ii) the Shelf Registration Statement is not declared
effective by the SEC on or prior to the later of the 40th day after the date
such Shelf Registration Statement was required to be filed pursuant to the terms
of the Registration Rights Agreement and the 180th date after the Issue Date, or
(iii) the Shelf Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be continuously effective or usable for
resales (whether as a result of an event contemplated by Section 3(e) of the
Registration Rights Agreement or otherwise) at any time during the 180-day
period (and any extensions of such period pursuant to the last paragraph of
Section 3 of the Registration Rights Agreement) immediately following the date
on which the Shelf Registration Statement is first declared effective (other
than after such time as all Registrable Securities have been disposed of
thereunder or otherwise cease to be Registrable Securities pursuant to the terms
of the Registration Rights Agreement), then in each case the Company shall pay
liquidated damages to the Initial Purchaser, at a rate of .25% per annum in
respect of the aggregate liquidation amount of Capital Securities held by the
Initial Purchaser or, in the event that the Trust is liquidated and Subordinated
Debentures are distributed to holders of Capital Securities, the aggregate
principal amount of Subordinated Debentures held by the Initial Purchaser, as
the case may be, in respect of the period (x) commencing on the 46th day after
such request for the filing of a Shelf Registration Statement is made by the
Initial Purchaser (provided that in no event shall such date be required to be
earlier than 91 days after the Issue Date) and terminating upon the filing of
the Shelf Registration Statement (in the case of clause (i) above), (y)
commencing on the later of the 41st day after the date the Shelf Registration
Statement was required to be filed and the 181st day after the Issue Date and
terminating upon the effectiveness of the Shelf Registration Statement (in the
case of clause (ii) above), or (z) commencing on the day the Shelf Registration
Statement ceases to be effective or usable for resales and terminating at such
time as the Shelf Registration
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Statement again becomes effective and usable for resales (in the case of clause
(iii) above).
(c) Any amounts of liquidated damages payable by the Company
pursuant to this Section 2 shall be paid in cash directly to the Initial
Purchaser on the next succeeding May 1 and November 1, as the case may be,
following the period in respect of which such Liquidated Damages have become due
and payable hereunder.
iii. General.
(a) 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.
(b) Amendments. This Agreement may be amended by the parties hereto
by a written instrument duly executed on behalf of each of the parties hereto.
(c) Entire Agreement. This Agreement and the Registration Rights
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(d) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York, without regard to any applicable conflicts of law.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered to the parties at the
addresses set forth in, and in a manner contemplated by, the Registration Rights
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
BANKNORTH GROUP, INC.
By:
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Name:
Title:
BANKNORTH CAPITAL TRUST I
By:
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Name:
Title: Administrative
Trustee
SANDLER X'XXXXX & PARTNERS, L.P.
By: SANDLER X'XXXXX
& PARTNERS, CORP.,
the sole general partner
By:
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Name:
Title:
