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EXECUTION COPY
BANCORP HAWAII CAPITAL TRUST I
$100,000,000
8.25% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
BANCORP HAWAII, INC.
REGISTRATION AGREEMENT
December 23, 1996
UBS Securities LLC
Credit Suisse First Boston Corporation
Salomon Brothers Inc
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Bancorp Hawaii Capital Trust I, a Delaware statutory business
trust (the "Trust"), and Bancorp Hawaii, Inc., a Hawaii corporation (the
"Company"), as guarantor, propose to issue and sell to UBS Securities LLC,
Credit Suisse First Boston Corporation and Salomon Brothers Inc (collectively,
the "Purchasers"), upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement"), 100,000 of the Trust's 8.25% Capital
Securities, Series A, liquidation amount $1,000 per Capital Security (the
"Capital Securities" and together with the guarantee by the Company of the
payment of the Capital Securities to the extent set forth in the Guarantee, the
"Pass-through Securities") (the "Initial Placement"). The proceeds of the sale
by the Trust of the Pass-through Securities and its 8.25% Common Securities,
liquidation amount $1,000 per Common Security (the "Common Securities"), are to
be invested in the 8.25% Junior Subordinated Debt Securities of the Company
having an aggregate principal amount equal to the aggregate liquidation amount
of the Capital Securities and the Common Securities (the "Junior
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Subordinated Debt Securities"). As an inducement to the Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Trust and the Company agree with you, (i) for your benefit and
(ii) for the benefit of the holders from time to time (each of the foregoing a
"Holder" and together the "Holders") of the Securities (as defined herein) or
the Exchange Securities (as defined herein), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Additional Distributions" has the meaning given
such term in Section 7(a) hereof.
"Additional Interest" has the meaning given such
term in Section 7(a) hereof.
"Affiliate" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person.
"Capital Securities" has the meaning set forth in the preamble
hereto.
"Closing Date" has the meaning given such term in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning set forth in
the preamble hereto.
"Declaration" means the Amended and Restated Declaration of
Trust relating to the Capital Securities and the Exchange Capital Securities
dated as of December 30, 1996, among the Company, as Depositor, ▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Administrative Trustees, the Property Trustee and The
Bank of New York (Delaware), a Delaware
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corporation, as Delaware Trustee, as the same may be amended from time to time
in accordance with the terms thereof.
"Distribution Event" shall mean the distribution of Junior
Subordinated Debt Securities or Exchange Junior Subordinated Debt Securities, as
the case may be, to the holders of Capital Securities or Exchange Capital
Securities, as the case may be, as provided in the
Declaration.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Capital Securities" means securities of the Trust to
be issued under the Declaration and which are identical in all material respects
to the Capital Securities (except that the distribution rate step-up provisions
and the transfer restrictions will be modified or eliminated, as appropriate).
"Exchange Guarantee" means the guarantee by the Company of the
Exchange Capital Securities, identical in all material respects to the
Guarantee.
"Exchange Junior Subordinated Debt Securities" means debt
securities of the Company to be issued under the Junior Subordinated Indenture
and which are identical in all material respects to the Junior Subordinated Debt
Securities (except that the interest rate step-up provisions and the transfer
restrictions will be modified or eliminated, as appropriate).
"Exchange Offer Registration Period" means the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Trust and the Company on an appropriate form under the Act with
respect to the Registered Exchange Offer (and, if a Distribution Event shall not
have occurred prior to the effectiveness of such Exchange Offer Registration
Statement and the Company shall not have elected to include the Junior
Subordinated Debt Securities held by the Trust in the Registered Exchange Offer
pursuant to Section 2(g) hereof, with respect to the
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distribution of the Junior Subordinated Debt Securities upon the occurrence of a
Distribution Event), and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Exchange Pass-through Securities" means the Exchange Capital
Securities together with the Exchange Guarantee.
"Exchange Securities" means (i) if a Distribution Event shall
not have occurred prior to the Registered Exchange Offer, (a) the Exchange
Pass-through Securities and (b) if the Company shall elect to include the Junior
Subordinated Debt Securities held by the Trust in the Registered Exchange Offer
pursuant to Section 2(g) hereof, the Exchange Junior Subordinated Debt
Securities or (ii) if a Distribution Event shall have occurred prior to the
Registered Exchange Offer, the Exchange Junior Subordinated Debt Securities.
"Exchanging Dealer" means any Holder (which may include any
Purchaser) which is a broker-dealer electing to exchange Securities acquired for
its own account as a result of market-making activities or other trading
activities for Exchange Securities.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Guarantee" means the guarantee by the Company of the Capital
Securities and the Common Securities pursuant to the Guarantee Agreement dated
as of December 30, 1996 between the Company and the Guarantee Trustee.
"Guarantee Trustee", "Indenture Trustee" and "Property
Trustee" each means The Bank of New York, a New York banking corporation.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in
the preamble hereto.
"Junior Subordinated Debt Securities" has the meaning set
forth in the preamble hereto.
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"Junior Subordinated Indenture" means the Junior
Subordinated Indenture relating to the Junior Subordinated Debt Securities and
the Exchange Junior Subordinated Debt Securities dated as of December 30, 1996
between the Company and the Indenture Trustee.
"Majority Holders" means (i) if no Distribution Event has
occurred, the Holders of a majority of the aggregate liquidation amount of
securities registered under a Registration Statement and (ii) if a Distribution
Event has occurred, the Holders of a majority of the aggregate principal amount
of securities registered under the Registration Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"Pass-through Securities" has the meaning set
forth in the preamble hereto.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Securities or the Exchange Securities, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Purchasers" has the meaning set forth in the preamble hereto.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders a like liquidation amount or
principal amount, as the case may be, of the Exchange Securities, in exchange
for (i) if a Distribution Event shall not have occurred, (a) the Pass-Through
Securities and (b) if the Company shall elect to include the Junior Subordinated
Debt Securities held by the Trust in the Registered Exchange Offer pursuant to
Section 2(g) hereof, the Junior Subordinated Debt Securities
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or (ii) if a Distribution Event shall have occurred, the Junior Subordinated
Debt Securities.
"Registration Default" has the meaning given such term in
Section 7(a) hereof.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, and
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Securities" means (i) if a Distribution Event shall not have
occurred, the Pass-through Securities and the Junior Subordinated Debt
Securities or (ii) if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning given such term in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Trust and the Company pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or the Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, and amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Tax Contingency" has the meaning given such term in Section
2(b) hereof.
"Tax Contingency Extension" has the meaning given such term in
Section 7(a) hereof.
"Trust" has the meaning set forth in the preamble hereto.
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"Trustee" means the Guarantee Trustee, the Indenture Trustee
or the Property Trustee, as applicable.
"underwriter" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities
by Exchanging Dealers. (a) The Trust and the Company shall prepare and, not
later than 60 days following the Closing Date, shall file with the Commission
the Exchange Offer Registration Statement. The Trust and the Company shall use
their best efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 150 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Trust and the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Trust or the Company
within the meaning of the Act, acquires the Exchange Securities in the ordinary
course of such Holder's business and has no arrangements with any person to
participate in the distribution (within the meaning of the Act) of the Exchange
Securities) to transfer such Exchange Securities from and after their receipt
without any limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States. Notwithstanding the foregoing (but subject
to the provisions of clause (ii) of Section 3 and clause (a)(iii) of Section 7),
in the event that the Company shall determine in good faith that (i) there is a
reasonable likelihood that, or (ii) a material uncertainty exists as to whether,
consummation of the Registered Exchange Offer would result in an adverse tax
consequence to the Company (a "Tax Contingency"), the Trust and the Company may
elect to delay commencement or consummation of the Registered Exchange Offer
until such Tax Contingency shall no longer exist or, if the Company shall
determine in good faith that such Tax Contingency is in existence on the 240th
day following the Closing Date, to terminate the Registered Exchange Offer.
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(c) In connection with the Registered Exchange Offer, the
Trust and 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 Registered 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) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, the City of
New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Trust and the Company shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of tendered Securities, Exchange Securities equal in
liquidation amount or principal amount, as the case may be, to the
Securities of such Holder so accepted for exchange therefor.
(e) The Purchasers and the Trust and the Company acknowledge
that, pursuant to interpretations by the Commission's staff of Section 5 of the
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Securities acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Trust and the Company shall:
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(i) include the information set forth in Annex A hereto on the
cover of the Exchange Offer Registration Statement, in Annex B hereto
in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Registered Exchange Offer, and in
Annex C hereto in the underwriting or plan of distribution section of
the Prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the Prospectus
forming a part thereof by Exchanging Dealers in connection with sales
of Exchange Securities received pursuant to the Registered Exchange
Offer, as contemplated by Section 4(h) below.
(f) In the event that the Purchasers determine that they are
not eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of their initial unsold
allotment of Securities, at the request of the Purchasers, the Company shall
issue and deliver to the Purchasers, in exchange for such Securities, a like
principal amount of Exchange Securities (provided that such Exchange Securities
shall include legends with respect to restrictions on transfer). The Trust and
the Company shall seek to cause the CUSIP Service Bureau to issue the same CUSIP
number for such Exchange Securities as for Exchange Securities issued pursuant
to the Registered Exchange Offer. The Purchasers agree to promptly notify the
Company in writing following the resale of their initial allotment of
Securities.
(g) Notwithstanding anything in this Agreement to the
contrary, if a Distribution Event shall not have occurred prior to the
Registered Exchange Offer, the Company may offer to, and the Trust shall agree
to, exchange the Junior Subordinated Debt Securities held by the Trust for an
identical principal amount of Exchange Junior Subordinated Debt Securities as
part of the Registered Exchange Offer; provided, however, that, until a
Distribution Event shall have occurred, such Exchange Junior Subordinated Debt
Securities shall include appropriate legends with respect to transfer
restrictions.
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3. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Trust and the
Company determine upon advice of their outside counsel that they are not
permitted to effect the Registered Exchange Offer as contemplated by Section 2
hereof or (ii) for any other reason the Registered Exchange Offer is not
consummated within 180 days (or, if the Company shall determine in good faith
that a Tax Contingency exists on such 180th day, within 240 days) of the Closing
Date, or (iii) the Purchasers so request with respect to Securities held by them
following consummation of the Registered Exchange Offer, or (iv) any Holder at
the time of the Registered Exchange Offer (other than a Purchaser) is not
eligible to participate in the Registered Exchange Offer or (v) in the event
that the Purchasers participate in the Registered Exchange Offer or acquire
Exchange Securities pursuant to Section 2(f) hereof and the Purchasers do not
receive freely tradeable Exchange Securities in exchange for Securities
constituting any portion of an unsold allotment (it being understood that, for
purposes of this Section 3, (x) the requirement that the Purchasers deliver a
Prospectus containing the information required by Items 507 and/or 508 of
Regulation S-K under the Act in connection with sales of Exchange Securities
acquired in exchange for such Securities shall result in such Exchange
Securities being not "freely tradeable" but (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities
shall not result in such Exchange Securities being not "freely tradeable"), the
following provisions shall apply:
(a) The Trust and the Company shall, as promptly as
practicable (but in no event more than 60 days after so required or requested
pursuant to this Section 3), file with the Commission and thereafter use their
best efforts to cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the Securities or the
Exchange Securities, as applicable, by the applicable Holders from time to time
in accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that with respect
to Exchange Securities received by the Purchasers in exchange for Securities
constituting any portion of an unsold allotment, the Trust and the Company may,
if permitted by current interpretations by the
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Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Regulation S-K
Items 507 and/or 508, as applicable, in satisfaction of their obligations under
this paragraph (a) with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration Statement.
(b) The Trust and the Company shall use their best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the Prospectus forming part thereof to be usable by the applicable Holders for a
period of three years (or, if Rule 144(k) is amended to provide a shorter
restrictive period, such shorter period) from the Closing Date or such shorter
period that will terminate when all the Securities or Exchange Securities, as
applicable, covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement (in any such case, such period being called
the "Shelf Registration Period").
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent specified, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to each Purchaser,
prior to the filing thereof with the Commission, a copy of any Shelf
Registration Statement and any Exchange Offer Registration Statement,
and each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein and shall use their best efforts to
reflect in each such document, when so filed with the Commission, such
comments as you reasonably may propose.
(b) The Trust and the Company shall ensure that (i) any
Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies
in all material respects with the Act and the rules and regulations
thereunder, (ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming
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part of any Registration Statement, and any amendment or supplement to
such Prospectus, does not, during the period when delivery thereof is
required, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading.
(c) (1) The Trust and the Company shall advise the Purchasers
and, in the case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, if requested by you or any such
Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) The Trust and the Company shall advise the Purchasers and,
in the case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer which has provided in
writing to the Trust and the Company a telephone or facsimile number
and address for notices, and, if requested by you or any such Holder or
Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Company or the Trust of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
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(iii) of the happening, during the period when delivery of
a Prospectus is required, of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the statements therein
are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes
have been made).
(d) The Trust and the Company shall use their best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Trust and the Company shall furnish to each Holder of
securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing,
all exhibits (including those incorporated by reference).
(f) The Trust and the Company shall, during the Shelf
Registration Period, deliver to each Holder of securities included
within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request;
and the Trust and the Company consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the securities covered by the
Prospectus or any amendment or supplement thereto.
(g) The Trust and the Company shall furnish to each Exchanging
Dealer which so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, any documents
incorporated by reference therein, and,
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if the Exchanging Dealer so requests in writing, all exhibits thereto
(including those incorporated by reference).
(h) The Trust and the Company shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably request for delivery
by such Exchanging Dealer in connection with a sale of Exchange
Securities received by it pursuant to the Registered Exchange Offer;
and the Trust and the Company consent to the use of the Prospectus or
any amendment or supplement thereto by any such Exchanging Dealer, as
aforesaid.
(i) Prior to the Registered Exchange Offer or any other
offering of securities pursuant to any Registration Statement, the
Trust and the Company shall, if required by applicable law, register or
qualify or cooperate with the Holders of securities included therein
and their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holder
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the securities covered by such Registration Statement;
provided, however, that neither the Trust nor the Company will be
required to qualify generally to do business in any jurisdiction where
it is not then so qualified or to take any action which would subject
it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(j) Unless the applicable securities shall be in book-entry
only form, the Trust and the Company shall cooperate with the Holders
to facilitate the timely preparation and delivery of certificates
representing the securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales of
securities pursuant to such Registration Statement.
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(k) Upon the occurrence of any event contemplated by
paragraphs c(1)(ii) or (c)(2)(iii) above, the Trust and the Company
shall promptly prepare a post-effective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or
file any other required document so that, as thereafter delivered to
purchasers of the securities included therein, the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(l) The Trust and the Company shall use their best efforts to
cause The Depository Trust Company ("DTC") on the first business day
following the effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the Pass-through Securities and/or
Junior Subordinated Debt Securities, as the case may be, any
designation indicating that such securities are "restricted
securities", which efforts shall include delivery to DTC of a letter
executed by the Trust and the Company substantially in the form of
Annex E hereto and (ii) any other stop or restriction on DTC's system
with respect to such securities. In the event the Trust and the Company
are unable to cause DTC to take the actions described in the
immediately preceding sentence, the Company shall take such actions as
UBS Securities LLC may reasonably request to provide, as soon as
practicable, a CUSIP number for the Pass-through Securities and/or
Junior Subordinated Debt Securities, as the case may be, registered
under such Registration Statement and to cause such CUSIP number to be
assigned to such securities (or to the maximum aggregate principal
amount of such securities to which such number may be assigned). Upon
compliance with the foregoing requirements of this Section 4(l), the
Trust and the Company shall provide the Trustee with printed
certificates for such securities, in a form eligible for deposit with
DTC.
(m) The Trust and the Company shall use their best efforts to
comply with all applicable rules and regulations of the Commission and
shall make generally available to its security holders as soon as
practicable after the effective date of the applicable
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Registration Statement an earnings statement satisfying the provisions
of Section 11(a) of the Act.
(n) The Trust and the Company shall cause the Junior
Subordinated Indenture, the Declaration and the Guarantee to be
qualified under the Trust Indenture Act
in a timely manner.
(o) The Trust and the Company may require each Holder of
securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Trust and the Company such information regarding such
Holder and the distribution of such securities by such Holder as the
Trust and the Company may from time to time reasonably require for
inclusion in such Registration Statement.
(p) The Trust and the Company shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing
Underwriters and Majority Holders reasonably agree should be included
therein and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Trust
and the Company shall enter into such agreements (including
underwriting agreements) and take all other appropriate actions in
order to expedite or facilitate the registration or the disposition of
the Securities or the Exchange Securities, as the case may be, and in
connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures no
less favorable than those set forth in Section 6 (or such other
provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 6.
(r) In the case of any Shelf Registration Statement, the Trust
and the Company shall (i) make reasonably available for inspection by
the Holders of securities to be registered thereunder, any underwriter
participating in any distribution pursuant to such Registration
Statement, and any attorney, accountant or
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other agent retained by such Holders or any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Trust or the Company and its subsidiaries as shall
reasonably be required in connection with the discharge of their due
diligence obligations; (ii) cause the Company's officers, directors and
employees and any relevant Trustee to supply at the Company's expense
all relevant information reasonably requested by such Holders or any
such underwriter, attorney, accountant or agent in connection with any
such Registration Statement as is customary for similar due diligence
examinations; provided, however, that, in the case of clause (i) and
(ii) above, any information that is designated in writing by the Trust
or the Company, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by such Holders and any
such underwriter, attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law, or
such information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality; and
provided further, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Holders and
the other parties entitled thereto by one counsel designated by and on
behalf of such Holders and other parties; (iii) make such
representations and warranties to the Holders of securities registered
thereunder and the underwriters, if any, in form, substance and scope
as are customarily made by issuers to underwriters in primary
underwritten offerings and covering such matters as are customarily
covered in representations and warranties requested in primary
underwritten offerings; (iv) obtain opinions of counsel to the Trust
and the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters and with such exceptions as
are customarily covered or taken in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
Holders and underwriters (it being agreed that the matters to be
covered by such counsel shall include, without limitation, as of the
date of the opinions and as of the effective date of the Registration
Statement or most recent post-effective amendment thereto, as the
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case may be, a statement by such counsel regarding the absence from
such Registration Statement and the Prospectus included therein, as
then amended or supplemented, including the documents incorporated by
reference therein, of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading); (v) obtain
"cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each selling Holder of
securities registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten
offerings; and (vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Trust and
the Company. The foregoing actions set forth in clauses (iii), (iv),
(v) and (vi) of this Section 4(r) shall be performed at (A) the
effectiveness of such Registration Statement and each post-effective
amendment thereto and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement,
if requested by the Purchasers, the Trust and the Company shall (i)
make reasonably available for inspection by the Purchasers, and any
attorney, accountant or other agent retained by the Purchasers, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries or the Trust as shall
reasonably be required in connection with the discharge of their due
diligence obligations; (ii) cause the Company's officers, directors and
employees and any relevant Trustee to supply at the Company's expense
all relevant information reasonably requested by the Purchasers or any
such attorney, accountant or agent in
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connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that, in the
case of clause (i) and (ii) above, any information that is designated
in writing by the Company or the Trust, in good faith, as confidential
at the time of delivery of such information shall be kept confidential
by the Purchasers and any such attorney, accountant or agent, unless
such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public
generally or through a third party without an accompanying obligation
of confidentiality; (iii) make such representations and warranties to
the Purchasers, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering
such matters as are customarily covered in representations and
warranties requested in primary underwritten offerings; (iv) obtain
opinions of counsel to the Trust and the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Purchasers and their counsel) addressed
to the Purchasers, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by the Purchasers or their counsel (it
being agreed that the matters to be covered by such counsel shall
include, without limitation, as of the date of the opinions and as of
the effective date of the Registration Statement or most recent
post-effective amendment thereto, as the case may be, a statement by
such counsel regarding the absence from such Registration Statement and
the Prospectus included therein, as then amended or supplemented,
including the documents incorporated by reference therein, of an untrue
statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading); (v) obtain "cold comfort" letters
and updates thereof from the independent certified public accountants
of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to the Purchasers, in customary form and covering
matters of
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the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings, or if requested by the Purchasers
or their counsel in lieu of a "cold comfort" letter, an agreed-upon
procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by the Purchasers or their counsel; and (vi)
deliver such documents and certificates as may be reasonably requested
by the Purchasers or their counsel, including those to evidence
compliance with Section 4(k) and with conditions customarily contained
in underwriting agreements. The foregoing actions set forth in clauses
(iii), (iv), (v) and (vi) of this Section 4(s) shall be performed, if
requested by the Purchasers, at the closing of the Registered Exchange
Offer and the effective date of any post-effective amendment to the
Exchange Offer Registration Statement.
5. Registration Expenses. The Trust and the Company shall bear
all expenses incurred in connection with the performance of their obligations
under Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders of securities registered thereunder for
the reasonable fees and disbursements of one firm or counsel designated by the
Majority Holders to act as counsel for such Holders in connection therewith,
and, in the case of any Exchange Offer Registration Statement, will reimburse
the Purchasers for the reasonable fees and disbursements of counsel acting in
connection therewith.
6. Indemnification and Contribution. (a) In connection with
any Registration Statement, the Company agrees to indemnify and hold harmless
each Holder of securities covered thereby (including any Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each such
Holder and each person who controls any such Holder within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed
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or in any amendment thereof, or in any preliminary Prospectus or Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Trust and the Company by or on behalf of any such
Holder specifically for inclusion therein and (ii) such indemnity with respect
to any untrue statement or omission in any preliminary Prospectus relating to a
Shelf Registration Statement shall not inure to the benefit of any Holder from
whom the person asserting any such loss, claim, damage or liability purchased
the securities that are the subject thereof, to the extent that any such loss,
claim, damage or liability of such Holder occurs under the circumstances where
it shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Trust and the Company had previously
furnished copies of the final Prospectus to such Holder, (x) delivery of the
final Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the preliminary
Prospectus was completely corrected in the final Prospectus and (z) there was
not sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the final Prospectus. This
indemnity agreement will be in addition to any liability which the Trust and the
Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses
(as defined below) of, as provided in Section 6(d), any underwriters of
securities registered under a Shelf Registration Statement, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Purchasers and the selling
Holders provided in this Section 6(a) and shall, if requested by any
underwriter,
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enter into an underwriting agreement reflecting such agreement, as provided in
Section 4(q) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including the Purchasers and, with respect to any Prospectus delivery
as contemplated in Section 4(h) hereof, each Exchanging Dealer) severally agrees
to indemnify and hold harmless (i) the Trust and the Company, (ii) each of the
Company's directors, (iii) each of the Company's officers or any Trustee who
signs such Registration Statement and (iv) each person who controls the Company
or the Trust within the meaning of either the Act or the Exchange Act to the
same extent as the foregoing indemnity from the Company to each such Holder, but
only with reference to written information relating to such Holder furnished to
the Trust or the Company by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above or paragraph
(d) below unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than obligations
provided under this Section 6. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel) (it
being understood that
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the indemnifying party shall not be liable for the fees, costs and expenses of
more than one separate counsel (and, to the extent necessary, one local counsel
in each jurisdiction)), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel (and local counsel) if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall the Purchasers be responsible, in the aggregate, for
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any amount in excess of the purchase discount, commission or compensation
applicable to such Security, or in the case of an Exchange Security, applicable
to the Security which was exchangeable into such Exchange Security, as set forth
on the cover page of the Final Memorandum, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Trust and the Company shall be deemed to be equal to
the total net proceeds from the Initial Placement (before deducting expenses) as
set forth on the cover page of the Final Memorandum. Benefits received by the
Purchasers shall be deemed to be equal to the total purchase discounts,
commissions or compensation as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the excess, if any, of the value to such Holder of receiving Securities
or Exchange Securities, as applicable, registered under the Act over the value
to such Holder of holding Securities not registered under the Act. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. Relative fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person who
controls a Holder within the
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meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of such Holder shall have the same rights to contribution as
such Holder, and each person who controls the Company or the Trust within the
meaning of either the Act or the Exchange Act, each officer of the Company and
each trustee of the Trust who shall have signed the Registration Statement and
each director of the Company and each trustee of the Trust shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Company or the Trust or any of the officers, directors, trustees or
controlling persons referred to in Section 6 hereof, and will survive the sale
by a Holder of securities covered by a Registration Statement.
7. Additional Interest and Additional Distributions Under
Certain Circumstances. (a) Additional interest (the "Additional Interest") shall
become payable in respect of the Junior Subordinated Debt Securities (including
in respect of amounts accruing during any Extension Period (as defined in the
Junior Subordinated Indenture)), and corresponding additional distributions (the
"Additional Distributions") shall become payable on the Capital Securities as
follows if any of the following events occur (each such event in clauses (i)
through (iv) below, a "Registration Default"):
(i) if the Exchange Offer Registration Statement is not filed
with the Commission on or prior to the 60th day following the Closing Date;
(ii) if the Exchange Offer Registration Statement is not
declared effective on or prior to the 150th day following the Closing Date;
(iii) if the Registered Exchange Offer is not consummated or
the Shelf Registration Statement is not declared effective on or prior to the
180th day (or, if the Company shall determine in good faith that a Tax
Contingency exists on such 180th day, the 240th day (a "Tax Contingency
Extension")) following the Closing Date; or
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(iv) if, after the 180th day (or in the case of a Tax
Contingency Extension, the 240th day) following the Closing Date, and after the
Shelf Registration Statement is declared effective, (A) such Shelf Registration
Statement ceases to be effective prior to the end of the Shelf Registration
Period (except as permitted in paragraph (b) of this Section 7); or (B) such
Shelf Registration Statement or the related Prospectus ceases to be useable in
connection with resales of Securities or Exchange Securities, as the case may
be, covered by such Shelf Registration Statement prior to the end of the Shelf
Registration Period (except as permitted in paragraph (b) of this Section 7)
because either (1) any event occurs as a result of which the related Prospectus
forming part of such Shelf Registration Statement would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in light of the circumstances under which they were
made not misleading or (2) it shall be necessary to amend such Shelf
Registration Statement, or supplement the related Prospectus, to comply with the
Securities Act or the Exchange Act or the respective rules thereunder.
Additional Interest and Additional Distributions shall accrue
on the Junior Subordinated Debt Securities and the Capital Securities,
respectively, over and above the interest rate or distribution rate, as the case
may be, set forth in the title to the Junior Subordinated Debt Securities and
the Capital Securities following the occurrence of each Registration Default set
forth in clauses (i), (ii), (iii) and (iv) above from and including the next day
following each such Registration Default, in each case at a rate equal to 0.25%
per annum; provided, however, that the aggregate amount of Additional Interest
and Additional Distributions, respectively, payable pursuant this Section 7(a)
will in no event exceed 0.75% per annum. The Additional Interest and the
Additional Distributions attributable to each Registration Default shall cease
to accrue from the date such Registration Default is cured.
(b) A Registration Default referred to in Section 7(a)(iv)
shall be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to
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permit Holders to use the related Prospectus or (y) the occurrence of other
material events or developments with respect to the Trust or the Company that
would need to be described in such Registration Statement or the related
Prospectus and (ii) in the case of clause (y), the Trust and the Company are
proceeding promptly and in good faith to amend or supplement such Registration
Statement and related Prospectus to describe such events; provided, however,
that in any case, if such Registration Default occurs for a continuous period in
excess of 45 days, Additional Interest and Additional Distributions shall be
payable in accordance with the above paragraph from the first day of such 45-day
period until the date on which such Registration Default is cured.
(c) Any amounts of Additional Interest and Additional
Distributions due pursuant to the foregoing paragraphs will be payable in cash
on June 15 and December 15 each year to the holders of record on the preceding
May 30 and November 30, respectively.
8. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Trust and the
Company has not, as of the date hereof, entered into, nor shall it, on or after
the date hereof, enter into, any agreement with respect to the Securities that
is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Trust and the Company have
obtained the written consent of the Holders of at least a majority of the then
outstanding aggregate liquidation amount or principal amount, as the case may
be, of Securities (or, after the consummation of any Exchange Offer in
accordance with Section 2 hereof, of Exchange Securities); provided, however,
that, with respect to any matter that affects the rights of any Purchaser
hereunder, the Trust and the Company shall obtain the written consent of the
Purchasers. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Registration
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Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of
securities being sold rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given
by such holder to the Company in accordance with the
provisions of this Section 8(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a copy
in like manner to UBS Securities LLC;
(2) if to you, initially at the address set forth in
the Purchase Agreement; and
(3) if to the Company or the Trust, initially at the
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Purchasers, the Trust or the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company or the Trust thereto, subsequent Holders of Securities and/or
Exchange Securities. The Trust and the Company hereby agree to extend the
benefits of this Agreement to any Holder of Securities and/or Exchange
Securities and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Trust or the Company, etc. Whenever
the consent or approval of Holders of a specified percentage of liquidation
amount or principal amount, as the case may be, of Securities or Exchange
Securities is required hereunder, Securities or Exchange Securities, as
applicable, held by the Trust or the Company or their respective Affiliates
(other than subsequent Holders of Securities or Exchange Securities if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Securities or Exchange Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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Please confirm that the foregoing correctly sets forth the
agreement among the Trust, the Company and you.
Very truly yours,
BANCORP HAWAII CAPITAL
TRUST I,
by:
--------------------------------
Name:
Title:
by:
--------------------------------
Name:
Title:
BANCORP HAWAII, INC.,
by:
--------------------------------
Name:
Title:
Accepted as of the date hereof
UBS SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
by UBS SECURITIES LLC,
by:
--------------------------------
Name:
Title:
31
ANNEX A
Annex A
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Trust and the Company have agreed
that, ending on the close of business on the 180th day following the Expiration
Date (as defined herein), it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
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ANNEX B
Annex B
Each broker-dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
33
ANNEX C
Plan of Distribution
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Trust and the Company have agreed that, starting on the
Expiration Date and ending on the close of business on the 180th day following
the Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until
, 199 , all dealers effecting transactions in the Exchange Securities
may be required to deliver a prospectus.
The Trust and the Company will not receive any proceeds from
any sale of Exchange Securities by broker-dealers. Exchange Securities received
by broker-dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the
Exchange Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer and/or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such Exchange Securities may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit of any such resale of Exchange Securities
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
34
2 For a period of 180 days after the Expiration Date, the
Trust and the Company will promptly send additional copies of this Prospectus
and any amendment or supplement to this Prospectus to any broker-dealer that
requests such documents in the Letter of Transmittal. The Trust and the Company
have agreed to pay all expenses incident to the Exchange Offer (including the
expenses of one counsel for the holders of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
35
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
-------------------------------------------
Address:
----------------------------------------
----------------------------------------
Rider B
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 Securities,
it represents that the Securities to be exchanged for Exchange Securities were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
36
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
Bancorp Hawaii Capital Trust I
Bancorp Hawaii, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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Re: 8.25% Capital Securities (the "Securities")
of Bancorp Hawaii Capital Trust I, fully and
unconditionally guaranteed by Bancorp Hawaii,
Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form S-3 under the Securities
Act of 1933 with regard to all of the Securities referenced above. Accordingly,
there is no longer any restriction as to whom such Securities may be sold and
any restrictions on the CUSIP designation are no longer appropriate and may be
removed. We understand that upon receipt of this letter, DTC will remove any
stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of
further assistance.
BANCORP HAWAII CAPITAL
TRUST I,
by:
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Authorized Officer
BANCORP HAWAII, INC.
by:
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Authorized Officer