SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
AMENDMENT NO. 1
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 13, 1996
HUBCO, INC.
(Exact name of registrant as specified in its charter)
New Jersey
(State or other jurisdiction of incorporation)
1-10699 22-2405746
(Commission File Number) (IRS Employer Identification No.)
1000 MacArthur Boulevard, Mahwah, New Jersey 07430
(Address of principal executive offices)
(201) 236-2630
(Registrant's telephone number, including area code)
<PAGE>
Item 7. Exhibits
99.3 Purchase Agreement dated September 10, 1996
99.4 Registration Rights Agreement dated September 13, 1996
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HUBCO, INC.
Dated: September 23, 1996 By: /S/ D. LYNN VAN BORKULO-NUZZO
------------------------------
D. Lynn Van Borkulo-Nuzzo,
Executive Vice President
<PAGE>
INDEX TO EXHIBITS
99.3 Purchase Agreement dated September 10, 1996
99.4 Registration Rights Agreement dated September 13, 1996
HUBCO, INC.
Debt Securities
Purchase Agreement
September 10, 1996
BEAR, STEARNS & CO. INC.
245 Park Avenue
New York, New York 10167
KEEFE, BRUYETTE & WOODS, INC.
Two World Trade Center
New York, New York 10048
Ladies and Gentlemen:
HUBCO, INC., a New Jersey corporation (the "Company"), confirms its
agreement with Bear, Stearns & Co. Inc. and Keefe, Bruyette & Woods, Inc. (the
"Initial Purchasers"), with respect to the sale by the Company and the purchase
by the Initial Purchasers of $75,000,000 aggregate principal amount of the
Company's 8.20% Subordinated Debentures Due 2006 (the "Securities").
The Securities are to be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Securities Act") in reliance upon exemptions therefrom. The Securities are to
be issued pursuant to an Indenture, to be dated as of September 13, 1996 (the
"Indenture"), between the Company and Summit Bank, a New Jersey banking
corporation (the "Trustee"). The Securities to be purchased by the Initial
Purchasers will be issued in book-entry form ("Book-Entry Securities") and will
be represented by one or more global securities (the "Global Security" or
"Global Securities") issued to the designated nominees of The Depository Trust
Company ("DTC") pursuant to a letter agreement, to be dated as of the Closing
Time (as defined in Section 2(b)) (the "DTC Agreement"), among the Company, the
Trustee and DTC.
The Company understands that the Initial Purchasers propose to make a
placement of the Securities on the terms and in the manner set forth herein and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers ("Subsequent
Purchasers") at any time after the date of this Agreement. Pursuant to the terms
of the Securities and the Indenture, investors that acquire Securities may only
resell or otherwise transfer such Securities if such Securities are hereafter
registered under the Securities Act or if an exemption from the registration
requirements of the Securities Act is available (including the exemption
afforded by Rule 144A ("Rule 144A") of the rules and regulations promulgated
under the Securities Act (the "Securities Act Rules") by the Securities and
Exchange Commission (the "Commission")).
The Company has prepared and delivered to the Initial Purchasers copies
of a preliminary offering memorandum (such preliminary offering memorandum,
including the documents incorporated or deemed to be incorporated by reference
therein, being hereinafter referred to as the "Preliminary Offering Memorandum")
and has prepared and will deliver to the Initial Purchasers, on the date hereof,
copies of a final offering memorandum dated September 10, 1996 (such final
offering memorandum, in the form first furnished to the Initial Purchasers,
including the documents incorporated or deemed incorporated by reference
therein, being hereinafter referred to as the "Final Offering Memorandum"), each
to be used by the Initial Purchasers in connection with their solicitation of
purchases of, or offering of, the Securities. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (whether the Preliminary Offering Memorandum or the Final
Offering Memorandum, or any amendment or supplement to either such document),
which has been prepared and delivered by the Company to the Initial Purchasers
in connection with their solicitation of purchases of, or offering of, the
Securities. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Final Offering Memorandum in connection
with the offering and resale of the Securities. All references herein to
information which is "included" or "contained" in the Offering Memorandum, and
all references of like import, shall include the information (including
financial statements) incorporated by reference therein, and all references
herein to amendments or supplements to the Final Offering Memorandum shall
include any document filed by the Company under the Securities Exchange Act of
1934, as amended (the "1934 Act"), which is deemed to be incorporated by
reference therein.
The holders of Securities will be entitled to the benefits of a
Registration Rights Agreement, in substantially the form attached hereto as
Exhibit A with such changes as shall be agreed to by the parties hereto (the
"Registration Rights Agreement"), pursuant to which the Company will file a
registration statement (the "Registration Statement") with the Commission
registering the Securities or the Exchange Securities referred to in the
Registration Rights Agreement under the Securities Act.
1. The Company represents and warrants to, and agrees with, each
of the Initial Purchasers that:
(a) The Final Offering Memorandum does not, and at the Closing
Time will not, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading; provided
that this representation, warranty and agreement shall not apply to statements
in or omissions from the Final Offering Memorandum made in reliance upon and in
conformity with information furnished to the Company in writing by the Initial
Purchasers expressly for use in the Final Offering Memorandum;
(b) The documents incorporated by reference in the Preliminary
Offering Memorandum, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder (the "Exchange Act Rules"), and any
further documents so filed and incorporated by reference, when they are filed
with the Commission, will conform in all material respects to the requirements
of the Exchange Act and the Exchange Act Rules;
(c) The Company has not, directly or indirectly, solicited any
offer to buy or offered to sell, and will not, directly or indirectly, solicit
any offer to buy or offer to sell, in the United States or to any United States
citizen or resident, any security which is or would be integrated with the sale
of the Securities in a manner that would require the Securities to be registered
under the Securities Act;
(d) None of the Company or any affiliate of the Company or any
person acting on their behalf (other than the Initial Purchasers and their
respective affiliates, as to which the Company makes no representation) has (A)
engaged, in connection with the offering of the Securities, in any form of
general solicitation or general advertising (as those terms are used within the
meaning of Regulation D under the Securities Act); (B) solicited offers for, or
offered or sold, such Securities by means of any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act; or (C) engaged in any directed selling
efforts (as defined in Rule 902 of the Securities Act) in the United States in
connection with the Securities being offered and sold pursuant to Regulation S;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of New
Jersey and has corporate power and authority, and has all licenses, permits,
orders, and other governmental and regulatory approvals, to own, lease, and
operate its properties and conduct its business in the jurisdictions in which
such business is transacted as described in the Offering Memorandum and as
presently conducted, with only such exceptions as are not material to the
business of the Company and its subsidiaries considered as a whole;
(f) Each of the Company's banking subsidiaries has been duly
incorporated and is validly existing as a bank or savings bank in good standing
under the laws of its jurisdiction of incorporation, is a member in good
standing of the Federal Deposit Insurance Corporation, and has full power and
authority under its Articles of Incorporation and Bylaws and the laws of its
jurisdiction of incorporation to own, lease, and operate its properties and to
conduct its businesses as described in the Offering Memorandum and as presently
conducted;
(g) Each of the Company's operating subsidiaries which is not a
bank or savings bank has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation
and has full power and authority under its Articles of Incorporation and Bylaws
and the laws of its jurisdiction of incorporation and the United States to own,
lease, and operate its properties and to conduct its businesses as provided in
the Offering Memorandum and as presently conducted;
(h) This Agreement has been duly authorized, executed, and
delivered on behalf of the Company and, when executed and delivered by the
Initial Purchasers, will be a valid and legally binding agreement of the Company
in accordance with its terms; the Securities have been duly authorized and, at
the Closing Time, will have been duly authenticated as contemplated by the
Indenture and issued and delivered in accordance with this Agreement, will
constitute valid and legally binding obligations of the Company in accordance
with their terms and will be entitled to the benefits provided by the Indenture;
and the Indenture has been duly authorized by the Company and, at the Closing
Time, will have been duly executed and delivered by the Company and the Trustee
and will constitute a valid and legally binding instrument of the Company in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(i) There is no consent, approval, authorization, order,
registration, or qualification of or with any court or any regulatory authority
or other governmental body having jurisdiction over the Company which is
required for, and the absence of which would materially affect, the issue and
sale of the Securities as contemplated by this Agreement or the execution,
delivery, or performance of the Indenture, except such as have been already
obtained or as may be required under the Securities Act with respect to the
Registration Rights Agreement and such consents, approvals, authorizations,
registrations, or qualifications as may be required under the securities or blue
sky laws of any jurisdiction in connection with the public offering of the
Securities by the Initial Purchasers;
(j) Other than as set forth in the Offering Memorandum, there are
no legal, regulatory, governmental, or arbitration proceedings pending, or to
the best knowledge of the Company, threatened, against the Company or any of its
subsidiaries, or of which any property of the Company or any of its subsidiaries
is the subject, which, if determined adversely to the Company, are reasonably
likely to have, individually or in the aggregate, a material adverse effect upon
the general affairs, financial position, net worth, or results of operations (on
an annual basis) of the Company and its subsidiaries considered as a whole;
(k) Arthur Andersen LLP, who have certified certain of the
financial statements of the Company and its subsidiaries and of Westport
Bancorp, Inc. ("Westport") and Lafayette American Bank and Trust Company
("Lafayette") included or incorporated by reference in the Offering Memorandum,
to the best knowledge of the Company, are independent certified public
accountants as required by the Securities Act and the Securities Act Rules;
(l) The audited and unaudited financial statements of the Company
(including the related notes and schedules and any pro forma financial
information) included in, or incorporated by reference into, the Offering
Memorandum comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, the Securities Act Rules, the
Exchange Act, and the Exchange Act Rules, and said financial statements present
fairly the consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the consolidated results of operations, changes in
shareholders' equity, and cash flows for the periods specified. Such financial
statements and related notes and schedules and pro forma financial information
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The selected
consolidated financial data, the tables and financial and statistical data
included in, or incorporated by reference into, the Offering Memorandum present
fairly the information shown therein and have been derived from, and are
consistent with, the audited and unaudited consolidated financial statements
included in, or incorporated by reference into, the Offering Memorandum. The
financial statements and related notes and schedules and pro forma financial
information included in, or incorporated by reference into, the Offering
Memorandum conform to the requirements of Regulation S-X of the Commission
applicable thereto and present fairly the information presented therein for the
periods shown. The statistical information required by Commission Industry Guide
3 ("Guide 3") incorporated by reference into the Offering Memorandum presents
fairly the information set forth therein, is in compliance with the Securities
Act, the Securities Act Rules, and Guide 3, and is consistent with the Company's
consolidated financial statements incorporated by reference into the Offering
Memorandum. To the best knowledge of the Company, the audited and unaudited
financial statements of Westport (including the related notes and schedules)
included in, or incorporated by reference in the Offering Memorandum comply as
to form in all material respects with the applicable accounting requirements of
the Securities Act, the Securities Act Rules, the Exchange Act and the Exchange
Act Rules, and said financial statements present fairly the consolidated
financial position of Westport and its subsidiaries as of the dates indicated
and the consolidated results of operations, changes in shareholders' equity and
cash flows for the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The audited and unaudited financial statements
of Lafayette (including the related notes and schedules) included in, or
incorporated by reference in the Offering Memorandum comply as to form in all
material respects with the applicable accounting requirements of the Federal
Deposit Insurance Corporation ("FDIC"), and said financial statements present
fairly the consolidated financial position of Lafayette and its subsidiaries as
of the dates indicated and the consolidated results of operations, changes in
shareholders' equity and cash flows for the periods specified and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved; and
(m) Since the respective dates as of which information is given
in the Final Offering Memorandum, there has not occurred any material adverse
change in, or any development involving a prospective material adverse change
in, or having a material adverse effect upon, the general affairs, financial
position, net worth, or results of operations (on an annual basis) of the
Company and its subsidiaries considered as a whole, otherwise than as set forth
or contemplated in the Final Offering Memorandum.
2. (a) On the basis of the representations and warranties
contained herein and pursuant to the terms and subject to the conditions set
forth herein, the Company agrees to sell to the Initial Purchasers, severally
and not jointly, and the Initial Purchasers agree, severally and not jointly, to
purchase from the Company, the Securities, at a purchase price equal to 98.317%%
of the aggregate principal amount thereof, the principal amount of the
Securities set forth opposite their respective names on Schedule I hereto.
(b) Payment of the purchase price for and delivery of the
Securities to be purchased by the Initial Purchasers shall be made at the
offices of Brown & Wood LLP, One World Trade Center, New York, New York, or at
such other place as shall be agreed upon by the Initial Purchasers and the
Company, at 10:00 A.M. on the third New York business day following the date
hereof (such time and date of payment and delivery being herein called the
"Closing Time"). Payment shall be made to the Company by wire transfer of
federal funds against delivery by the Company or by the Trustee, on the
Company's behalf, to the Initial Purchasers of the Global Securities. The Global
Securities shall be registered in the name or names of the designated nominees
pursuant to the DTC Agreement and shall be made available for examination and
packaging by the Initial Purchasers not later than 10:00 A.M. on the last New
York business day prior to the Closing Time.
(c) Each of the Initial Purchasers hereby severally represents
and warrants to, and agrees with, the Company that it (i) is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and an "accredited investor" within the meaning of Regulation D under the
Securities Act; (ii) has not and will not solicit offers for, or offer or sell,
Securities by means of any general solicitation or general advertising within
the meaning of Rule 502(c) under Regulation D under the Securities Act; and
(iii) will otherwise act in accordance with the terms and conditions set forth
in this Agreement, including Section 6 hereof, and in the Offering Memorandum in
connection with the placement of the Securities contemplated hereby.
3. The Company agrees with each of the Initial Purchasers as
follows:
(a) The Company, as promptly as possible, will furnish to the
Initial Purchasers, without charge, such number of copies of the Final Offering
Memorandum and all amendments and supplements thereto as the Initial Purchasers
may reasonably request.
(b) The Company will immediately notify the Initial Purchasers,
and confirm such notice in writing, of (x) any filing made by the Company of
information relating to the offering of the Securities with any securities
exchange or any other regulatory body, and (y) prior to the completion of the
placement of the Securities by the Initial Purchasers as evidenced by a notice
in writing from the Initial Purchasers to the Company, any material changes in
or affecting the business affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries which (i)
make any statement in the Offering Memorandum false or misleading or (ii) are
not disclosed in the Offering Memorandum. In such event or if during such time
any event shall occur as a result of which it is necessary, in the reasonable
opinion of the Company, its counsel, the Initial Purchasers or counsel for the
Initial Purchasers, to amend or supplement the Final Offering Memorandum in
order that the Final Offering Memorandum not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made therein not misleading in the light of the circumstances then
existing, the Company will forthwith amend or supplement the Final Offering
Memorandum by preparing and furnishing to the Initial Purchasers an amendment or
amendments of, or a supplement or supplements to, the Final Offering Memorandum
(in form and substance satisfactory in the reasonable opinion of counsel for the
Initial Purchasers) so that, as so amended or supplemented, the Final Offering
Memorandum will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a purchaser,
not misleading.
(c) The Company will advise the Initial Purchasers promptly of
any proposal to amend or supplement the Offering Memorandum and will not effect
such amendment or supplement without the consent of the Initial Purchasers.
Neither the consent of the Initial Purchasers (which consent shall not be
unreasonably withheld), nor the Initial Purchasers' delivery of any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) The Company will use its best efforts, in cooperation with
the Initial Purchasers, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Initial Purchasers may designate; provided, however, that
the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(e) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Offering Memorandum under
"Use of Proceeds".
(f) During a period of 60 days from the date hereof, the Company
will not, without the Initial Purchasers' prior written consent, directly or
indirectly, issue, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any securities of the Company that are substantially
similar to the Securities.
(g) Except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement (each as defined in
the Registration Rights Agreement), neither the Company nor any of its
affiliates (as such term is defined in Rule 501(b) of Regulation D) will solicit
any offer to buy or offer to sell the Securities by means of any form of general
solicitation or general advertising (within the meaning of Rule 502(C) of
Regulation D) or in any manner involving a public offering with the meaning of
Section 4(2) of the Securities Act.
(h) The Company agrees that no future offer and sale of debt
securities of the Company of any class will be made if, as a result of the
doctrine of "integration" referred to in Rule 502 under the Securities Act, such
offer and sale would render invalid (for the purposes of (i) the sale of the
Securities by the Company to the Initial Purchasers, (ii) the resale of the
Securities by the Initial Purchasers to Subsequent Purchasers or (iii) the
resale of the Securities by such Subsequent Purchasers to others) the exemption
from the registration requirements of the Securities Act provided by Section
4(2) thereof or by Rule 144A.
(i) The Company will, so long as the Securities are outstanding
and are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, either (i) file reports and other information with the
Commission under Section 13(a) or Section 15(d) of the 1934 Act, or (ii) furnish
to holders of the Securities and prospective purchasers of the Securities
designated by such holders, upon request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act to permit compliance with Rule 144A in connection with
the resale of the Securities.
(j) Until the expiration of three years after the original
issuance of the Securities, the Company will not, and will cause its
"affiliates" (as such term is defined in Rule 144(a)(1) under the Securities
Act) not to, purchase or agree to purchase or otherwise acquire any Securities
which are "restricted securities" (as such term is defined under Rule 144(a)(3)
under the Securities Act), whether as beneficial owner or otherwise (except as
agent on behalf of and for the account of customers in the ordinary course of
business as a securities broker in unsolicited broker's transactions) unless,
immediately upon any such purchase, the Company or any such affiliate shall
submit such Securities to the Trustee for cancellation.
(k) Each Security will bear a legend substantially in the form
set forth in the Offering Memorandum under the caption "Notice to Investors"
until such legend shall no longer be necessary or advisable because such
Security is no longer subject to the restrictions on transfer described therein.
(l) Except following the effectiveness of the Registration
Statement, none of the Company, any of its affiliates (as such term is define in
Rule 501(b) of Regulation D) or any person acting on behalf thereof (except that
no covenant or agreement is made with respect to the Initial Purchasers acting
on behalf of the Company) will engage in any directed selling efforts (as such
term is defined under Regulation S) in the United States with respect to the
Securities, and each of the Company, such affiliate and such other person acting
on behalf thereof (except as aforesaid) will comply with the offering
restrictions requirement of Regulation S.
(m) At or prior to the Closing Time, the Company will not,
without your prior written consent, directly or indirectly, offer, sell, grant
any option to purchase or otherwise dispose of any debt securities of the
Company, other than the Exchange Securities referred to in the Registration
Rights Agreement.
4. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation, printing
and distribution of the Preliminary Offering Memorandum, the Final Offering
Memorandum and of each amendment and supplement thereto and the delivery to the
Initial Purchasers of copies thereof in such quantities as the Initial
Purchasers shall request pursuant to Section 3(a) hereof, (ii) the preparation,
printing and delivery to the Initial Purchasers of this Agreement, the Indenture
and such other documents as may be required in connection with the offering,
purchase, sale and delivery of the Securities, (iii) the preparation, issuance
and delivery of the certificates for the Securities to the Initial Purchasers,
including any charges of DTC in connection therewith, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(d) hereof, including filing fees and the fees and
disbursements of counsel for the Initial Purchasers in connection therewith and
in connection with the preparation and printing of memoranda, if any, related
thereto, (vi) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, (vii) any fees of rating agencies with
respect to the Securities, and (viii) the cost of obtaining approval for the
trading of the Securities through PORTAL.
The Initial Purchasers will pay all of their own costs and expenses,
including the cost of printing any Agreement among the Initial Purchasers, the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers that they may make.
If this Agreement is terminated by the Initial Purchasers in accordance
with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Initial Purchasers for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Initial
Purchasers.
5. The obligations of the Initial Purchasers hereunder shall be
subject, in the discretion of the Initial Purchasers, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of the Closing Time, true and correct, the condition that the Company
shall have performed all of its obligations hereunder theretofore to be
performed, in all material respects, and the following additional conditions:
(a) Pitney, Hardin, Kipp & Szuch, counsel to the Company, or
other counsel satisfactory to the Initial Purchasers in their reasonable
judgment, shall have furnished to the Initial Purchasers their written opinion,
dated the Closing Time, in form satisfactory to the Initial Purchasers in their
reasonable judgment, to the effect that:
(1) The Company is validly existing as a corporation in good
standing under the laws of the State of New Jersey and has corporate power and
authority to own, lease, and operate its properties and conduct its business as
described in the Offering Memorandum, with only such exceptions as are not
material to the business of the Company and its subsidiaries considered as a
whole;
(2) This Agreement has been duly authorized, executed, and
delivered by the Company;
(3) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms except to the extent that the enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally, (2) public policy considerations and (3)
general principles of equity (regardless of whether enforcement is considered in
a proceeding at law or in equity) and except that rights to indemnification and
contribution thereunder may be limited by applicable law;
(4) The Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally, (2) public policy considerations and (3) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity);
(5) The Securities are in the form contemplated by the
Indenture, have been duly authorized by requisite corporate action on the part
of the Company and, when executed by the Company and authenticated by the
Trustee in the manner provided in the Indenture and delivered against payment of
the purchase price therefor specified in this Agreement, will be valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally, (2) public
policy considerations and (3) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity), and
will be entitled to the benefits of the Indenture;
(6) The Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Offering Memorandum;
(7) The information in the Offering Memorandum under
"Description of Debentures", to the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings, or legal conclusions, has
been reviewed by them and is correct in all material respects;
(8) The documents filed by the Company with the Commission
and incorporated by reference in the Offering Memorandum as amended or
supplemented (other than the financial statements and other accounting
information contained or incorporated by reference therein or omitted therefrom,
as to which such counsel need express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the Exchange Act and the Exchange Act Rules;
(9) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency (other than which have been obtained, or as may
be required under the Securities Act with respect to the Registration Rights
Agreement or under securities or blue sky laws of the various states) is
required in connection with the due authorization, execution and delivery of
this Agreement, the Registration Rights Agreement and the Indenture or for the
offering, issuance or sale of the Securities to the Initial Purchasers; and the
execution, delivery and performance of this Agreement, the DTC Agreement, the
Registration Rights Agreement, the Indenture and the Securities, and the
consummation of the transactions contemplated herein or therein or in the
Offering Memorandum and compliance by the Company with its obligations
thereunder (including the use of proceeds from the sale of the Securities as
described in the Offering Memorandum under the caption "Use of Proceeds") will
not, whether with or without the giving of notice or lapse of time or both,
result in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company, or any applicable federal or New Jersey state law,
statute, rule or regulation; and
In rendering each such opinion, such counsel may rely as
to matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials.
(b) D. Lynn Van Borkulo-Nuzzo, Esq., General Counsel to the
Company, or other counsel satisfactory to the Initial Purchasers in their
reasonable judgment, shall have furnished to the Initial Purchasers her written
opinion, dated the Closing Time, in form satisfactory to the Initial Purchasers
in their reasonable judgment, to the effect that:
(1) The Company has an authorized capital stock as set forth
in the Offering Memorandum;
(2) Each of the Company's bank subsidiaries is validly
existing as a banking corporation in good standing under the laws of its
jurisdiction of incorporation, is a member in good standing of the Federal
Deposit Insurance Corporation, and has full power and authority under its
Articles of Incorporation and Bylaws and the laws of its jurisdiction of
incorporation to own, lease, and operate its respective properties and to
conduct its businesses as described in the Offering Memorandum; and
(3) Such counsel does not know of any legal, regulatory,
governmental, or arbitration proceeding pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject, and no such proceedings are known by such
counsel to be threatened or contemplated by governmental authorities or
threatened by others, other than as set forth or contemplated in the Offering
Memorandum as amended or supplemented and other than such proceedings which, in
their opinion, will not have a material adverse effect upon the general affairs,
financial position, net worth, or results of operations (on an annual basis) of
the Company and its subsidiaries considered as a whole.
(4) The execution, delivery and performance of this
Agreement, the DTC Agreement, the Registration Rights Agreement, the Indenture
and the Securities, and the consummation of the transactions contemplated herein
or therein or in the Offering Memorandum and compliance by the Company with its
obligations hereunder or thereunder (including the use of the proceeds from the
sale of the Securities as described in the Offering Memorandum under the caption
"Use of Proceeds") will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of, or default or
repayment event under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, to the best of such counsel's knowledge, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject; or any
applicable judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties, assets
or operations, except where such breaches, defaults, repayment events, liens,
charges and encumbrances, in the aggregate, will not have a material adverse
effect upon the general affairs, financial position, net worth, or results of
operations (on an annual basis) of the Company and its subsidiaries considered
as a whole.
In rendering each such opinion, such counsel may rely as
to matters of fact (but not as to legal conclusions), to the extent she deems
proper, on certificates of responsible officers of the Company and public
officials.
(c) Brown & Wood LLP, counsel to the Initial Purchasers,
shall have furnished to the Initial Purchasers their written opinion, dated the
Closing Time, in form satisfactory to the Initial Purchasers in their reasonable
judgment, with respect to the matters set forth in clauses (1) through (7),
inclusive, of subsection 5(a). In giving their opinion, Brown & Wood LLP may
rely, as to matters of New Jersey law, upon the opinion of Pitney, Hardin, Kipp
& Szuch.
(d) In addition to the opinions required by subsections (a),
(b) and (c) of this Section, Pitney, Hardin, Kipp & Szuch, D. Lynn Van
Borkulo-Nuzzo, Esq. and Brown & Wood LLP shall each additionally state, either
together with their opinion or in a separate letter, that nothing has come to
their attention that would lead them to believe that the Final Offering
Memorandum (other than the financial statements, supporting schedules and other
financial and statistical data included or incorporated by reference therein, as
to which no belief need be expressed), as amended or supplemented at the date
thereof and at the Closing Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(e) At the Closing Time, the Initial Purchasers shall have
received from Arthur Andersen LLP a letter dated such date, in form and
substance satisfactory to the Initial Purchasers, to the effect that (i) they
are independent public accountants with respect to the Company and its
subsidiaries within the meaning of the Securities Act and the applicable
Securities Act Rules; (ii) in their opinion, the financial statements audited by
them and incorporated by reference in the Offering Memorandum comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act and the related Securities Act Rules; (iii) based upon limited
procedures set forth in detail in such letter (which shall include, without
limitation, the procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial information as described in
SAS No. 71, Interim Financial Information, with respect to the unaudited
combined financial statements of the Company included in the Offering
Memorandum), nothing has come to their attention which causes them to believe
that (A) any material modifications should be made to the unaudited combined
financial statements of the Company incorporated by reference in the Offering
Memorandum for them to be in conformity with generally accepted accounting
principles or (B) the unaudited combined financial statements of the Company
incorporated by reference in the Offering Memorandum do not comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act and the related Securities Act Rules or (C) at a specified date
not more than three days prior to the Closing Time, there has been any change in
the capital stock of the Company or any increase in the consolidated long-term
debt or any decrease in the consolidated net current assets or stockholders'
equity of the Company as compared with the amounts shown in the June 30, 1996
balance sheet incorporated by reference in the Offering Memorandum or, during
the period from June 30, 1996 to a specified date not more than three days prior
to the date of this Agreement, there were, compared with the corresponding
period in the preceding year, any decreases in consolidated revenues or
operating income or in net income or net income per share of the Company and its
consolidated subsidiaries, except in all instances for changes, increases or
decreases which the Offering Memorandum discloses have occurred or may occur;
(iv) in addition to the examination referred to in their opinions and the
limited procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Offering Memorandum and which were specified by
the Initial Purchasers, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in such letter; (v) they
have compared the information incorporated by reference in the Offering
Memorandum under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302 and 402,
respectively, of Regulation S-K; and (vi) based upon limited procedures set
forth in detail in such letter, nothing came to their attention that caused them
to believe that the unaudited pro forma condensed financial statements included
or incorporated by reference in the Offering Memorandum do not comply as to form
in all material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements.
(f) At the Closing Time, the Initial Purchasers shall have
received from Arthur Andersen LLP one or more letters dated such date, in form
and substance satisfactory to the Initial Purchasers, to the effect that (i) the
financial statements of Westport audited by them and incorporated by reference
in the Offering Memorandum comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the Securities Act
Rules; and (ii) that, based on the limited procedures set forth in such letter,
nothing has come to their attention which causes them to believe that the
unaudited consolidated financial statements of Westport incorporated by
reference in the Offering Memorandum have not been prepared in conformity with
generally accepted accounting principles or that such unaudited consolidated
financial statements do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the Securities Act
Rules.
(g) At the Closing Time, the Initial Purchasers shall have
received from Arthur Andersen LLP one or more letters dated such date, in form
and substance satisfactory to the Initial Purchasers, to the effect that (i) the
financial statements of Lafayette audited by them and incorporated by reference
in the Offering Memorandum comply as to form in all material respects with the
applicable accounting requirements for audited annual financial statements
included in Form F-2 filed with the FDIC including the related published rules
and regulations; and (ii) that, based on the limited procedures set forth in
such letter, nothing has come to their attention which causes them to believe
that the unaudited consolidated financial statements of Lafayette incorporated
by reference in the Offering Memorandum have not been prepared in conformity
with generally accepted accounting principles or that such unaudited
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the FDIC including the
related published rules and regulations.
(h) Since the date hereof or the respective dates as of which
information is given in the Final Offering Memorandum, there shall not have
occurred any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, financial
position, net worth, or results of operations (on an annual basis) of the
Company and its subsidiaries considered as a whole, otherwise than as set forth
or contemplated in the Offering Memorandum as amended or supplemented, which in
any such case makes it impracticable or inadvisable in the reasonable judgment
of the Initial Purchasers to proceed with the purchase and resale of the
Securities on the terms and in the manner contemplated in the Offering
Memorandum as amended or supplemented.
(i) Since the date hereof, the United States shall not have
become engaged in hostilities which have resulted in the declaration of a
national emergency or a declaration of war, which makes it impracticable or
inadvisable in the reasonable judgment of the Initial Purchasers to proceed with
the purchase and resale of the Securities on the terms and in the manner
contemplated in the Offering Memorandum as amended or supplemented.
(j) At Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Final Offering Memorandum, any material adverse change, or any development
involving a prospective material adverse change, in the business affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Initial Purchasers shall
have received a certificate of the Chief Executive Officer, President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time and (iii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time.
(k) At Closing Time, the Securities shall be rated at least
BBB by Fitch Investors Service, Inc. ("Fitch") , and the Company shall have
delivered to the Initial Purchasers a letter dated the Closing Time, from Fitch,
or other evidence satisfactory to the Initial Purchasers, confirming that the
Securities have such rating; and since the date of this Agreement, there shall
not have occurred a downgrading in the rating assigned to the Securities or any
of the Company's other debt securities, and no such securities rating agency
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Securities or any of the
Company's other debt securities.
(l) At Closing Time, the Company shall have been advised by
the NASD PORTAL Market that the Securities will be designated PORTAL eligible
securities in accordance with the rules and regulations of the NASD.
(m) At Closing Time, counsel for the Initial Purchasers shall
have been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Initial Purchasers and
counsel for the Initial Purchasers.
(n) At Closing Time, the Registration Rights Agreement shall
have been fully executed and be in full force and effect.
(o) There shall have been furnished to the Company and the
Initial Purchasers, at the Closing Time, such certificates of officers of the
Trustee as, in the reasonable judgment of the Initial Purchasers and the
Company, shall be appropriate to indicate that the Indenture has been duly
authorized, executed, and delivered by the Trustee.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Initial Purchasers by notice to the Company at any time at or prior to
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Section 7 shall
survive any such termination and remain in full force and effect.
6. (a) The Initial Purchasers understand that the Securities have
not been and will not be registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S under the Securities Act
or pursuant to an exemption from the registration requirements of the Securities
Act. Each of the Initial Purchasers severally represents and agrees, that,
except as permitted by Section 6(b) below, it has offered and sold Securities
and will offer and sell Securities (i) as part of its distribution at any time
or (ii) otherwise until forty days after the later of the date upon which the
offering of the Securities commences and the Closing Time, only in accordance
with Rule 903 of Regulation S or Rule 144A under the Securities Act. Each of the
Initial Purchasers severally represents and further agrees that neither such
Initial Purchaser, its affiliates or any persons acting on its behalf have
engaged or will engage in any directed selling efforts with respect to
Securities, and its affiliates and any person acting on its behalf have complied
and will comply with the offering restriction requirements of Regulation S. Each
of the Initial Purchasers severally agrees that, at or prior to confirmation of
a sale of Securities (other than a sale of Securities pursuant to Rule 144A), it
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it or
through it during the restricted period a confirmation or notice substantially
to the following effect:
"The Securities covered hereby have not been registered
under the United States Securities Act of 1933 (the
"Securities Act") and may not be offered or sold within the
United States or to or for the account or benefit of U.S.
persons (i) as part of their distribution at any time or
(ii) otherwise until forty days after the later of the date
upon which the offering of the Securities commenced and the
date of closing, except in either case in accordance with
Regulation S or Rule 144A under the Securities Act. Terms
used above have the meaning given to them by Regulation S."
Each of the Initial Purchasers severally represents and agrees that it has not
entered and will not enter into any contractual arrangements with respect to the
distribution of the Securities, except with its affiliates or with the prior
written consent of the Company.
(b) The Initial Purchasers and the Company hereby establish and
agree to observe the following procedures in connection with the offer and sale
by the Initial Purchasers of the Securities.
(i) Offers and sales of the Securities will be made
by the Initial Purchasers only to (1) institutional investors that are
reasonably believed to qualify as accredited investors (as defined in
Rule 501(a) under the Securities Act) (each such institutional investor
being hereinafter referred to as an "institutional accredited
investor"), or (2), in the case of Securities resold or otherwise
transferred pursuant to Rule 144A, to institutional investors that are
reasonably believed to qualify as qualified institutional buyers (as
therein defined) (each such institutional investor being hereinafter
referred to as a "qualified institutional buyer") or (3) to non-U.S.
persons in offshore transactions in accordance with Regulation S under
the Securities Act.
(ii) The Securities will be offered by the Initial
Purchasers only by approaching prospective purchasers on an individual
basis. No general solicitation or general advertising (as such terms
are used in Regulation D under the Securities Act) will be used in
connection with the offering of the Securities.
(iii) In the case of a non-bank purchaser acting as a
fiduciary for one or more third parties, in connection with an offer
and sale of the Securities to such purchaser pursuant to clause (i)
above, each third party shall, in the judgment of the applicable
Initial Purchasers, be an institutional accredited investor or a
qualified institutional buyer or a non-U.S. person outside the United
States.
(iv) The transfer restrictions and the other
provisions set forth in Section 3.5 of the Indenture, including the
legend required thereby, shall apply to the Securities except as
otherwise agreed by the Company and the Initial Purchasers. Following
the sale of the Securities by the Initial Purchasers to Subsequent
Purchasers pursuant to the terms hereof, the Initial Purchasers shall
not be liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including any losses,
damages or liabilities under the Securities Act, arising from or
relating to any resale or transfer of any Security.
(v) Each of the Initial Purchasers will deliver to
each purchaser of the Securities from the Initial Purchasers, in
connection with their original distribution of the Securities, a copy
of the Final Offering Memorandum, as amended and supplemented at the
date of such delivery.
(vi) In connection with its original distribution of
the Securities, the Company agrees that, prior to any offer or resale
of the Securities by the Initial Purchasers, the Initial Purchasers and
counsel for the Initial Purchasers shall have the right to make
reasonable inquiries into the business of the Company and its
subsidiaries. The Company also agrees to provide answers to each
prospective Subsequent Purchaser of Securities who so requests
concerning the Company and its subsidiaries (to the extent that such
information is available or can be acquired and made available to
prospective Subsequent Purchasers without unreasonable effort or
expense and to the extent the provision thereof is not prohibited by
applicable law) and the terms and conditions of the offering of the
Securities, as provided in the Offering Memorandum.
7. (a) The Company will indemnify and hold harmless each Initial
Purchaser against any losses, claims, damages, or liabilities, joint or several,
to which such Initial Purchaser may become subject with respect to the
Securities, 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 any material fact contained in any preliminary
offering memorandum (including the Preliminary Offering Memorandum) or the Final
Offering Memorandum as amended or supplemented, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each such Initial Purchaser for any legal or other expenses
reasonably incurred by such Initial Purchaser in connection with investigating
or defending any such action or claim; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage,
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any of such documents
in reliance upon and in conformity with written information furnished to the
Company by any Initial Purchaser expressly for use therein; and provided,
further, however, that the Company shall not be liable to any Initial Purchaser
or any person controlling such Initial Purchaser under the indemnity agreement
in this subsection (a) with respect to any of such documents to the extent that
any such loss, claim, damage, or liability of such Initial Purchaser or
controlling person results from the fact that such Initial Purchaser sold the
Securities to a person to whom there was not sent or given a copy of the
Preliminary Offering Memorandum or of the Final Offering Memorandum as then
amended or supplemented (excluding documents incorporated by reference) if the
Company previously has furnished copies thereof to such Initial Purchaser.
Insofar as the Company's indemnity agreement set forth in this
subsection (a) relates to any untrue statement or omission, or any alleged
untrue statement or omission, made in a preliminary offering memorandum but
eliminated or remedied in the Final Offering Memorandum, such indemnity
agreement shall not cover any claim asserted by a person to whom a copy of the
Final Offering Memorandum was not delivered if the delivery thereof would have
constituted a defense to the claim asserted by such person.
The indemnity agreement in this subsection (a) shall be in addition to
any liability which the Company otherwise may have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Initial
Purchaser within the meaning of the Securities Act.
(b) Each Initial Purchaser will indemnify and hold harmless the
Company against any losses, claims, damages, or liabilities to which the Company
may become subject with respect to the Securities, 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 any material
fact contained in any preliminary offering memorandum (including the Preliminary
Offering Memorandum) or the Final Offering Memorandum as amended or
supplemented, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any of such documents in reliance upon
and in conformity with written information furnished to the Company by such
Initial Purchaser expressly for use therein and will reimburse the Company for
any legal fees or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim.
The indemnity agreement in this subsection (b) shall be in addition to
any liability which the Initial Purchasers otherwise may have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of the
Securities Act.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) immediately above of written notice of the commencement of
any action, such indemnified party, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, shall notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party. In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party in its reasonable judgment, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under subsection (a) or (b) immediately
above in respect of any losses, claims, damages, or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Initial Purchasers on the other from the
offering of the Securities to which such loss, claim, damage, or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Initial Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Initial Purchasers on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Initial Purchasers, in each case as set forth in
the table on the cover page of the Final Offering Memorandum as amended or
supplemented. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or such Initial Purchasers and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission, including, with respect to any such Initial
Purchaser, the extent to which such losses, claims, damages, or liabilities (or
actions in respect thereof) result from the fact that such Initial Purchaser
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 Offering Memorandum
as then amended or supplemented (excluding documents incorporated by reference),
if the Company previously has furnished copies thereof to such Initial
Purchaser. The Company and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it were offered to the secondary purchasers
exceeds the amount of any damages which such Initial Purchaser otherwise has
been required to pay by reason of such untrue or allegedly untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Initial Purchasers in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
8. The respective indemnities, agreements, representations,
warranties, and other statements of the Initial Purchasers and the Company
hereunder, as set forth in this Agreement or made by them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Initial Purchaser or the Company or any of its officers or
directors or any controlling person, and shall survive delivery of and payment
for the Securities.
9. (a) The Initial Purchasers may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Final Offering Memorandum, any
material adverse change in the business affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which is such as to make it, in the judgment of the Initial
Purchasers, impracticable to market the Securities or to enforce contracts for
the sale of the Securities, or (iii) if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the over-the-counter market has
been suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said exchanges
or by such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal, New York or New Jersey
authorities, or (v) if, since the date of this Agreement, there shall have
occurred a downgrading in the rating assigned to the Securities or any of the
Company's other debt securities, or any securities rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Securities or any of the Company's
other debt securities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Section 7
shall survive such termination and remain in full force and effect.
10. All statements, requests, notices, and agreements hereunder
shall be in writing, or by telegram if promptly confirmed in writing, and if to
the Bear, Stearns & Co. Inc. shall be sufficient in all respects if delivered or
sent by registered mail to Bear, Stearns & Co. Inc., 245 Park Avenue, New York,
New York 10167, attention of the Corporate Bond Department, if to the Keefe,
Bruyette & Woods, Inc. shall be sufficient in all respects if delivered or sent
by registered mail to Keefe, Bruyette & Woods, Inc., Two World Trade Center,
85th Floor, New York, New York 10048, attention of John Duffy and if to the
Company shall be sufficient in all respects if delivered or sent by registered
mail to the Company at 1000 MacArthur Blvd., Mahwah, New Jersey 07430, attention
of D. Lynn Van Borkulo-Nuzzo.
11. This Agreement shall be binding upon, and inure solely to the
benefit of, the Initial Purchasers and the Company and, to the extent provided
in Section 7 and Section 8 hereof, the officers and directors of the Company and
any person who controls any Initial Purchaser or the Company, and their
respective personal representatives, successors, and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Securities from any Initial Purchaser shall be construed
a successor or assign by reason merely of such purchase.
12. Time shall be of the essence of this Agreement.
13. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
14. This Agreement may be executed by each of the parties hereto
and thereto in any number of counterparts, and by each of the parties hereto and
thereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement.
Very truly yours,
HUBCO, INC.
By: /S/ D. LYNN VAN BORKULO-NUZZO
-----------------------------
Name: D. Lynn VanBorkulo-Nuzzo, Esq.
Title: Executive Vice President
Corporate Secretary
Accepted in New York, New York, as of the date hereof:
BEAR, STEARNS & CO. INC.
By: /S/ TIMOTHY A. O'NEILL
----------------------
Timothy A. O'Neill
Senior Managing Director
KEEFE, BRUYETTE & WOODS, INC.
By: /S/ FRANK S. CICERO
-----------------------
Name: Frank S. Cicero
Title: Vice President
<PAGE>
SCHEDULE I TO PRICING AGREEMENT
Principal Amount
of Designated
Securities to
Initial Purchaser Be Purchased
----------------- ----------------
Bear, Stearns & Co. Inc. $37,500,000
Keefe, Bruyette & Woods, Inc. . . . . . . . $37,500,000
Total . . $75,000,000
-----------
REGISTRATION RIGHTS AGREEMENT
Dated as of September 13, 1996
by and among
HUBCO, INC.,
BEAR, STEARNS & CO. INC.
and
KEEFE, BRUYETTE & WOODS, INC.
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of September 13, 1996, by and among HUBCO, INC., a corporation
organized under the laws of the State of New Jersey (the "Company"), BEAR,
STEARNS & CO. INC. and KEEFE, BRUYETTE & WOODS, INC. (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
September__, 1996 between the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers, severally, of $75,000,000 aggregate principal amount of the
Company's 8.20% Subordinated Debentures Due 2006, (the "Initial Securities"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their respective
direct and indirect transferees the registration rights set forth in this
Agreement. The execution 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:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and also
includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
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 materials incorporated by reference therein.
"Exchange Securities" shall mean 8.20% Subordinated Debentures Due 2006
issued by the Company under the Indenture containing terms identical to the
Initial Securities (except that (i) interest thereon shall accrue from the last
date on which interest was paid on the Initial Securities or,if no such interest
has been paid, from the date of their original issue, (ii) the transfer
restrictions thereon shall be eliminated and (iii) certain provisions relating
to an increase in the stated rate of interest thereon shall be eliminated), to
be offered to Holders of Initial Securities in exchange for Initial Securities
pursuant to the Exchange Offer.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture.
"Indenture" shall mean the Indenture relating to the Initial Securities
dated as of September 13, 1996 between the Company and Summit Bank, as trustee,
as the same may be amended from time to time in accordance with the terms
thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company shall be disregarded in determining whether such consent or approval was
given by the Holders of such required percentage or amount.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all materials incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Initial Securities; provided,
however, that the Initial Securities shall cease to be Registrable Securities
when (i) a Registration Statement with respect to such Initial Securities shall
have been declared effective under the 1933 Act and such Initial Securities
shall have been disposed of pursuant to such Registration Statement, (ii) such
Initial Securities shall have been sold to the public pursuant to Rule 144 (or
any similar provision then in force, but not Rule 144A) under the 1933 Act,
(iii) such Initial Securities shall have ceased to be outstanding or (iv) upon
consummation of the Exchange Offer but only with respect to Initial Securities
held by a Holder that is eligible to receive fully tradeable Exchange Securities
in connection with the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. ("NASD") registration and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state securities or
blue sky laws and compliance with the rules of the NASD (including reasonable
fees and disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or Registrable
Securities), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities exchange
or exchanges, (vi) the fees and disbursements of counsel for the Company and of
the independent public accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the Trustee, and any
escrow agent or custodian, and (viii) any fees and disbursements of the
underwriters customarily required to be paid by issuers or sellers of securities
and the reasonable fees and expenses of any special experts retained by the
Company in connection with any Registration Statement, but excluding fees of
counsel to the underwriters or the Holders and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company 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 thereof and all
materials incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities on an appropriate form
under Rule 415 under the 1933 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 materials incorporated by
reference therein.
"Trustee" shall mean the trustee with respect to the Initial Securities
under the Indenture.
2. Registration Under the 1933 Act. (a) Exchange Offer Registration. To
the extent not prohibited by any applicable law or applicable interpretation of
the Staff of the SEC, the Company shall use its best efforts (A) to cause an
Exchange Offer Registration Statement covering the offer by the Company to the
Holders to exchange all of the Registrable Securities for Exchange Securities to
be filed with, and declared effective by, the SEC within 150 days after the
Closing Date, (B) to cause such Registration Statement to remain effective until
the closing of the Exchange Offer and (C) to consummate the Exchange Offer
within 180 days following the Closing Date. The Exchange Securities will be
issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder (other than
Participating Broker-Dealers (as defined in Section 3(f))) eligible and electing
to exchange Registrable Securities for Exchange Securities (assuming that such
Holder is not an affiliate of the Company within the meaning of Rule 405 under
the 1933 Act, acquires the Exchange Securities in the ordinary course of such
Holder's business and has no arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing the Exchange
Securities) to trade such Exchange Securities from and after their receipt
without any limitations or restrictions under the 1933 Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
In connection with the Exchange Offer, the Company 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 not less than 30 days after
the date notice thereof is mailed to the Holders (or longer if required
by applicable law);
(iii) use the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Securities at
any time prior to the close of business, New York City time, on the
last business day on which the Exchange Offer shall remain open, 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 Registrable Securities delivered for exchange,
and a statement that such Holder is withdrawing his election to have
such Initial Securities exchanged; and
(v) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with
the terms of the Exchange Offer Registration Statement and the letter
of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Securities so accepted for exchange by the Company; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities equal in
amount to the Registrable Securities of such Holder so accepted for
exchange.
Interest on each Exchange Security will accrue from the last date on
which interest was paid on the Registrable Securities surrendered in exchange
therefor or, if no interest has been paid on the Registrable Securities, from
the date of its original issue. The Exchange Offer shall not be subject to any
conditions, other than (i) that the Exchange Offer, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the Staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer, (iii) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer which, in the
Company's judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer, (iv) that there shall not have been
adopted or enacted any law, statute, rule or regulation which, in the Company's
judgment, would reasonably be expected to impair the ability of the Company to
proceed with the Exchange Offer, (v) that there shall not have been declared by
U.S. federal, New York or New Jersey authorities a banking moratorium which, in
the Company's judgment, would reasonably be expected to impair the ability of
the Company to proceed with the Exchange Offer, (vi) that trading generally on
the New York Stock Exchange or in the over-the-counter market shall not have
been suspended by order of the Commission or any other governmental authority,
which, in the Company's judgment, would reasonably be expected to impair the
ability of the Company to proceed with the Exchange Offer and (vii) that each
Holder of Registrable Securities (other than Participating Broker-Dealers) who
wishes to exchange such Registrable Securities for Exchange Securities in the
Exchange Offer shall have represented that (A) it is not an affiliate of the
Company, (B) any Exchange Securities to be received by it were acquired in the
ordinary course of business and (C) at the time of the commencement of the
Exchange Offer it has no arrangement with any person to participate in the
distribution (within the meaning of the 1933 Act) of the Exchange Securities and
shall have made such other representations as may be reasonably necessary under
applicable SEC rules, regulations or interpretations to render the use of Form
S-4 or another appropriate form under the 1933 Act available; provided, however,
that none of the foregoing conditions shall relieve the Company of its
obligations under this Agreement or effect any increase in the interest rate
borne by the Initial Securities pursuant to this Agreement. To the extent
permitted by law, the Company shall inform the Initial Purchasers 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.
(b) Shelf Registration. (i) If, because of any change in law
or applicable interpretations thereof by the Staff of the SEC, the Company is
not permitted to effect the Exchange Offer as contemplated by Section 2(a)
hereof, or (ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 150 days following the Closing Date,
or (iii) upon the request of either of the Initial Purchasers (with respect to
any Registrable Securities which it acquired directly from the Company)
following the consummation of the Exchange Offer if such Initial Purchaser shall
hold Registrable Securities which it acquired directly from the Company and if
such Initial Purchaser is not permitted, in the opinion of counsel to the
Initial Purchasers, pursuant to applicable law or applicable interpretation of
the Staff of the SEC to participate in the Exchange Offer, the Company shall, at
its cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance
with the methods of distribution elected by the Majority Holders of
such Registrable Securities and set forth in such Shelf Registration
Statement, and use its best efforts to cause such Shelf Registration
Statement to be declared effective by the SEC by the 210th day after
the Closing Date (or promptly in the event of a request by an Initial
Purchaser pursuant to clause (iii) above). In the event that the
Company is required to file a Shelf Registration Statement upon the
request of an Initial Purchaser pursuant to clause (iii) above, the
Company shall file and have declared effective by the SEC both an
Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Securities and a Shelf Registration
Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales
of Registrable Securities held by such Holder or the Initial Purchasers
after completion of the Exchange Offer;
(B) use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of three
years from the date the Shelf Registration Statement is declared
effective by the SEC (or one year from the date the Shelf Registration
Statement is declared effective if such Shelf Registration Statement is
filed upon the request of an Initial Purchaser pursuant to clause (iii)
above) or 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; and
(C) notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf 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 Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time), does
not 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.
The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required by
Section 3(b) below, to use all reasonable efforts to cause any such amendment to
become effective and such Shelf Registration to become usable as soon as
thereafter practicable and 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 Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or 2(b) and, in the
case of any Shelf Registration Statement, will reimburse the Holders or Initial
Purchasers for the reasonable fees and disbursements of one firm or counsel
designated in writing by the Majority Holders to act as counsel for the Holders
of the Registrable Securities in connection therewith, and, in the case of an
Exchange Offer Registration Statement, will reimburse the Initial Purchasers, as
applicable, for the reasonable fees and disbursements of counsel in connection
therewith. Each Holder shall pay all expenses of its counsel other than as set
forth in the preceding sentence, underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company will be deemed
not to have used its 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 the Company voluntarily
takes any action that would result in any such Registration Statement not being
declared effective or in the Holders of Registrable Securities covered thereby
not being able to exchange or offer and sell such Registrable Securities during
that period unless (A) such action is required by applicable law or (B) 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 complies
with the requirements of Section 3(k) hereof, if applicable.
(ii) 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 a 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.
(e) Increase in Interest Rate. In the event that (i) the Exchange Offer
Registration Statement is not filed with, and declared effective by, the
Commission on or prior to the 150th calendar day after the Closing Date (unless
changes in law or the applicable interpretation of the Staff of the SEC do not
permit the Company to effect the Exchange Offer, in which case clause (iii)
shall apply), (ii) the Exchange Offer is not consummated on or prior to the
180th calendar day after the Closing Date (unless changes in law or the
applicable interpretation of the Staff of the SEC do not permit the Company to
effect the Exchange Offer, in which case clause (iii) shall apply) or (iii) a
Shelf Registration Statement with respect to the Registrable Securities is
required to be filed due to a change in law or interpretation and such Shelf
Registration Statement is not declared effective on or prior to the later of the
210th calendar day after the Closing Date and the 45th calendar day after the
publication of the change in law or interpretation, the interest rate borne by
the Initial Securities shall be increased by 0.50% per annum following such
150-day period in the case of clause (i) above, such 180-day period in the case
of clause (ii) above or such 210-day period or 45-day period (as applicable) in
the case of clause (iv) above; provided that the aggregate increase in such
interest rate will in no event exceed 0.50% per annum. Upon (w) the filing of
the Exchange Offer Registration Statement after the 150-day period described in
clause (i) above, (x) the consummation of the Exchange Offer after the 180-day
period described in clause (ii) above, or (u) the effectiveness of a Shelf
Registration Statement after the 210-day period or 45-day period (as applicable)
described in clause (iii) above, the interest rate borne by the Initial
Securities from the date of such filing, effectiveness or consummation, as the
case may be, will be reduced to the original interest rate.
(f) Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement,
within the time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company,
(ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the selling Holders thereof and
(iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by
reference 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 effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act; and
comply with the provisions of the 1933 Act with respect to the
disposition of all securities covered by each Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five days prior to filing,
that a Shelf Registration Statement with respect to the Registrable
Securities is being filed and advising such Holders that the
distribution of Registrable Securities will be made in accordance with
the method elected by the Majority Holders; and (ii) furnish to each
Holder of Registrable Securities, to counsel for the Initial
Purchasers, to counsel for the Holders 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 thereof and such other
documents as such Holder or underwriter may reasonably request,
including financial statements and schedules and, if the Holder so
requests, all exhibits (including those incorporated by reference) in
order to facilitate the public sale or other disposition of the
Registrable Securities; and (iii) subject to the last paragraph of
Section 3, hereby consent to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement
thereto;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably
request by the time the applicable Registration Statement is declared
effective by the SEC, to cooperate with the Holders in connection with
any filings required to be made with the NASD, and do any and all other
acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company 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) or (ii) take any action which would subject it to
general service of process or taxation in any such jurisdiction if it
is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for the Initial Purchasers promptly
and, if requested by such Holder or counsel, confirm such advice in
writing promptly (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 post-effective amendments and supplements to a
Registration Statement and 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
initiation of any proceedings for that purposes, (iv) 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 Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to such offering cease to be true and correct in all material respects,
(v) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such proposes, (vi) of the happening of any event or the
discovery of any facts during the period a Shelf Registration Statement
is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
which requires the making of any changes in such Registration Statement
or Prospectus in order to make the statements therein not misleading
and (vii) of any determination by the Company that a post-effective
amendment to a Registration Statement would be appropriate.
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Securities for Exchange Securities for the resale of such
Exchange Securities, (ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, 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 broker-dealer may reasonably request, (iii) include in
the Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer,
may be a statutory underwriter and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (iv) subject to the last paragraph of Section 3,
hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement
thereto, by any broker-dealer in connection with the sale or transfer
of the Exchange Securities covered by the Prospectus or any amendment
or supplement thereto, and (v) 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 undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Securities. 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 meeting the
requirements of the 1933 Act in connection with any resale of
such Exchange Securities pursuant to the Exchange Offer;
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 1933 Act"; and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (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 1933 Act; and
(B) to the extent any Participating Broker-Dealer participates
in the Exchange Offer, the Company shall use its best efforts to cause
to be delivered at the request of entities representing the
Participating Broker-Dealers (which entities shall be the Initial
Purchasers, unless they elect not to act as such representatives) only
one, if any, "cold comfort" letter with respect to the Prospectus in
the form existing on the last date for which exchanges are accepted
pursuant to the Exchange Offer and with respect to each subsequent
amendment or supplement, if any, effected during the period specified
in clause (C) below; and
(C) to the extent any Participating Broker-Dealer participates
in the Exchange Offer, the Company shall use its best efforts to
maintain the effectiveness of the Exchange Offer Registration Statement
for a period of 180 days following the closing of the Exchange Offer;
and
(D) the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange offer Registration Statement
as would otherwise be contemplated by Section 3(b), or take any other
action as a result of this Section 3(f), for a period exceeding 180
days after the closing of the Exchange offer (as such period may be
extended by the Company) and Participating Broker-Dealers shall not be
authorized by the Company to, and shall not, deliver such prospectus
after such period in connection with resales contemplated by this
Section 3.
(g) (A) in the case of an Exchange Offer, furnish counsel for
the Initial Purchasers and (B) in the case of a Shelf Registration,
furnish counsel for the Holders of Registrable Securities copies of any
request by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as
soon as practicable and provide immediate notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and
cause such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders or the underwriters, if any, may
reasonably request at least two business days prior to the closing of
any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts, each as contemplated by
Section 3(e)(vi) hereof, use its best efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain at the time of such delivery 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. The Company agrees to notify each Holder to suspend use
of the Prospectus as promptly as practicable after the occurrence of
such an event, and each Holder hereby agrees to suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus
to correct such misstatement or omission. At such time as such public
disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any misstatement
of a material fact or to include any omitted material fact, the Company
agrees promptly to notify each Holder of such determination and to
furnish each Holder such numbers of copies of the Prospectus, as
amended or supplemented, as such Holder may reasonably request;
(l) obtain a CUSIP number for all Exchange Securities, or
Registrable Securities, 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 Securities or the
Registrable Securities, as the case may be, in a form eligible for
deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Securities, or Registrable Securities, as
the case may be, (ii) cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA
and (iii) execute, and use its best efforts to cause the 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 the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the
Majority Holders) in order to expedite or facilitate the disposition of
such Registrable Securities and in such connection whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters,
if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings
as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinion (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the holders of a majority in
principal amount of the Registrable Securities being sold)
addressed to each selling Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested
in sales of securities or underwritten offerings and such
other matters as may be reasonably requested by such Holders
and underwriters;
(iii) obtain letters and updates thereof from the
Company's independent certified public accountants addressed
to the underwriters, if any, and will use best efforts to have
such letters addressed to the selling Holders of Registrable
Securities, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders
for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be in form, substance and
scope customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 5 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section 5; and
(vi) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in
similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
and (ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any underwritten
offering, the Company shall provide written notice to the Holders of
all Registrable Securities of such underwritten offering at least 30
days prior to the filing of a prospectus supplement for such
underwritten offering. Such notice shall (x) offer each such Holder the
right to participate in such underwritten offering, (y) specify a date,
which shall be no earlier than 10 days following the date of such
notice, by which such Holder must inform the Company of its intent to
participate in such underwritten offering and (z) include the
instructions such Holder must follow in order to participate in such
underwritten offering;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable
Securities and any underwriters participating in any disposition
pursuant to a Shelf Registration Statement and any counsel or
accountant retained by such Holders or underwriters, all financial and
other records, pertinent corporate documents and properties of the
Company reasonably requested by any such persons, and cause the
respective officers, directors, employees, and any other agents of the
Company to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in
connection with a Registration Statement;
(p) (i) a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment
or supplement to a Prospectus, provide copies of such document to the
Initial Purchasers, and make such changes in any such document prior to
the filing thereof as any of the Initial Purchasers or their counsel
any reasonably request; (ii) in the case of a Shelf Registration, a
reasonable time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document to the Holders of Registrable
Securities, to the Initial Purchasers, to counsel on behalf of the
Holders and to the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any, and make such changes in
any such document prior to the filing thereof as the Holders of
Registrable Securities, the Initial Purchasers on behalf of such
Holders, their counsel and any underwriter may reasonably request; and
(iii) cause the representatives of the Company to be available for
discussion of such document as shall be reasonably requested by the
Holders of Registrable Securities, the Initial Purchasers on behalf of
such Holders or any underwriter and shall not at any time make any
filing of any such document of which such Holders, the Initial
Purchasers on behalf of such Holder, their counsel or any underwriter
shall not have previously been advised and furnished a copy or to which
such Holders, the Initial Purchasers on behalf of such Holders, their
counsel or any underwriter shall reasonably object;
(q) in the case of a Shelf Registration, use its best efforts
to cause the Registrable Securities to be rated with the appropriate
rating agencies, if so requested by the Majority Holders or by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any, unless the Registrable Securities are already so
rated;
(r) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
and
(s) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable Securities to furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section
3(e)(ii)-(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(k) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at its expense) all copies in its possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Shelf Registration Statement as a result of
the happening of any event or the discovery of any facts, each of the kind
described in Section 3(e)(vi) hereof, the Company shall be deemed to have used
its best efforts to keep the Shelf Registration Statement effective during such
period of suspension provided that the Company shall use its best efforts to
file and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Shelf Registration Statement and shall extend the
period during which the Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions.
4. Underwritten Registrations. If any of the Registrable
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Majority Holders of such
Registrable Securities included in such offering and shall be reasonably
acceptable to the Company.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless the Initial Purchasers, each Holder, including
Participating Broker-Dealers, each underwriter who participates in an offering
of Registrable Securities, their respective affiliates, and the respective
directors, officers, employees, agents and each Person, if any, who controls any
of such parties within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act as follows:
(i) against any and all losses, liabilities, claims, damages
and expenses whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any 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 written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including, subject to the provisions of Section 5(c) below, fees and
disbursements of counsel chosen by any indemnified party), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any court or governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that 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 to the Company by the Initial
Purchasers, any Holder, including Participating Broker-Dealers or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(b) In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Initial Purchasers, each underwriter who participates in an offering of
Registrable Securities and the other selling Holders and each of their
respective directors and officers (including each officer of the Company who
signed the Registration Statement) and each person, if any, who controls the
Company, the Initial Purchasers, any underwriter or any other selling Holder
within the meaning of Section 15 of the 1933 Act, against any and all losses,
liabilities, claims, damages and expenses described in the indemnity contained
in Section 5(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Holder, as the case may be,
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto); provided, however, that
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, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have other than on account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of such action. In no event
shall the indemnifying party or parties be liable for the fees and expenses of
more than one 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.
(d) In order to provide for just and equitable contribution in
circumstances in which any of the indemnity provisions set forth in this Section
5 are for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the Initial
Purchasers and the Holders shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company, the Initial Purchasers and the
Holders, as incurred; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any Person that was not guilty of such fraudulent
misrepresentation. As between the Company, the Initial Purchasers and the
Holders, such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect (i) the relative
benefits received by the Company on the one hand and the Initial Purchasers and
the Holders on the other hand, from the offering of the Exchange Securities or
Registrable Securities included in such offering, and (ii) the relative fault of
the Company on the one hand and the Initial Purchasers 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 benefits received
by the Company on the one hand and the Initial Purchasers and the Holders on the
other hand shall be deemed to be in the same proportion as (x) in the case of
the Company, the total proceeds from the offering pursuant to the Purchase
Agreement (before deducting expenses) received by the Company with respect to
the Initial Securities sold by the Initial Purchasers or any Holder bear to (y)
in the case of the Initial Purchasers or any Holder, the aggregate principal
amount of Initial Securities sold by the Initial Purchasers or any such Holder,
as the case may be, less the amount of proceeds relating to such Initial
Securities received by the Company. The relative fault of the Company, on the
one hand and the Initial Purchasers and any such Holders on the other hand shall
be determined by reference to, among other things, whether the untrue statement
of a material fact or alleged untrue statement or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Initial Purchasers or any such Holder, as the case may be, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or alleged untrue statement or such
omission or alleged omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5 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. The obligations of the
Initial Purchasers and any Holders in this Section 5(d) are several in
proportion to their respective obligations hereunder and not joint.
Notwithstanding the provisions of this Section 5(d), in no event shall any
Holder of Registrable Securities be required to contribute any amount which is
in excess of the excess on the aggregate principal amount of Registrable
Securities sold by such Holder (net of the proceeds received by the Company
pursuant to the Purchase Agreement with respect thereto) over the amount that
such person has otherwise been required to pay by reason of such alleged
statement or omission. For purposes of this Section 5, each affiliate of the
Initial Purchasers or a Holder, and each director, officer, employee, agent and
Person, if any, who controls the Initial Purchasers or a Holder or such
affiliate within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Initial Purchasers or
such Holder, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each Person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as
the Company is subject to the reporting requirements of Section 13 or 15 of the
1934 Act, the Company covenants that it will file the reports required to be
filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and
the rules and regulations adopted by the SEC thereunder, that if it ceases to be
so required to file such reports, it will continue to file such reports as if it
were still required to do so and that it will upon the request of any Holder of
Registrable Securities (i) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will take such further action as
any Holder of Registrable Securities may reasonably request, and (iii) 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 1933 Act within the limitation of the
exemptions provided by (x) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (y) Rule 144A under the 1993 Act, as such Rule may be
amended from time to time, or (z) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company will delivery to such Holder a written statement as to whether it
has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered
into nor will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company 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, however, that no amendment, modification,
supplement or waiver or consent to any departure from the provisions of Section
5 hereof shall be effective as against any Holder of Registrable Securities
unless consented to in writing by such Holder.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
6(d), which addresses initially are, with respect to the Initial Purchasers, the
respective addresses set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(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 receipt is acknowledged, if telecopied; and on the next business day if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee, at
the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms hereof or 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, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiaries. The Initial Purchasers shall be
third party beneficiaries to the agreements made hereunder between the Company,
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 their respective rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto to 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.
<PAGE>
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
HUBCO, INC.
By /S/ D. LYNN VAN BORKULO-NUZZO
----------------------------
Name: D. Lynn Van Borkulo-Nuzzo
Title: Executive Vice President
and Corporate Secretary
Confirmed and accepted as of the date first above written:
BEAR, STEARNS & CO. INC.
By: /S/ WILLIAM HOULIHAN
-------------------------
Name: William Houlihan
Title: Managing Director
KEEFE. BRUYETTE & WOODS, INC.
By: /S/ FRANK CICERO
--------------------
Name: Frank Cicero
Title: Vice President
