BRIDGE BANCORP, INC.
As
filed with the Securities and Exchange Commission on June 26, 2009
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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Bridge Bancorp, Inc.
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Bridge Statutory Capital Trust I |
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(Exact name of registrant as specified in its charter)
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(Exact name of registrant as specified in its charter) |
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New York
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Delaware |
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(State or other jurisdiction of
incorporation or organization)
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(State or other jurisdiction of
incorporation or organization) |
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11-2934195
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90-6119528 |
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(I.R.S. Employer Identification No.)
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(I.R.S. Employer Identification No.) |
2200 Montauk Highway, Bridgehampton, New York 11932, (631) 537-1000
(Address, including zip code, and telephone number, including area code, of registrants principal executive office)
Kevin M. OConnor
President and Chief Executive Officer
Bridge Bancorp, Inc.
2200 Montauk Highway
Bridgehampton, New York 11932
(631) 537-1000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications to:
John J. Gorman, Esquire
Michael J. Brown, Esquire
Luse Gorman Pomerenk & Schick, P.C.
5335 Wisconsin Avenue, N.W., Suite 400
Washington, D.C. 20015
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this registration statement as determined by market conditions and other factors.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer o
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Accelerated filer þ
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Amount |
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Maximum |
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Proposed Maximum |
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Amount of |
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Title of each Class of |
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to be |
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Offering Price |
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Aggregate |
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Registration |
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Securities to be Registered |
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Registered(1) |
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Per Unit(1) |
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Offering Price(1)(2) |
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Fee |
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Debt Securities(3) |
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Common Stock, $0.01 par value per share(3) |
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Preferred Stock, $0.01 par value per share(3) |
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Depository Shares(3) |
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Warrants(4) |
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Purchase Contracts(5) |
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Capital Securities of Bridge Statutory Capital Trust I(6) |
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Guarantees of Capital Securities of Bridge Statutory Capital Trust I(6) |
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Units (7) |
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Total |
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$50,000,000 |
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$50,000,000 |
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$2,790 |
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(1) |
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Information as to each class of security has been omitted pursuant to General Instruction
II.D of Form S-3 under the Securities Act. |
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(2) |
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Estimated for the sole purpose of computing the registration fee in accordance with Rule
457(o) under the Securities Act and exclusive of accrued interest, distributions and
dividends, if any. Subject to Rule 462(b) under the Securities Act, the aggregate public
offering price of all securities registered hereby will not exceed $50,000,000. Such amount
represents the issue price rather than the principal amount of any debt securities issued at
an original issue discount. |
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Such indeterminate principal amount of debt securities, preferred stock or common stock as
may, from time to time, be issued (i) at indeterminate prices or (ii) without separate
consideration upon conversion, redemption, exercise or exchange of securities registered
hereunder, to the extent any such securities are, by their terms, convertible into or
exchangeable for other securities registered hereunder, or as shall be issuable pursuant to
antidilution provisions. In the event we elect to offer to the public fractional interests in
our shares of preferred stock registered hereunder, depositary shares, evidenced by depository
receipts issued pursuant to a deposit agreement, will be distributed to those persons
purchasing fractional interests and the shares of preferred stock will be issued to the
depository under any such agreement. |
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Warrants may be sold separately or together with our debt securities, preferred stock, common
stock or depositary shares or capital securities of Bridge Statutory Capital Trust I (the
Trust). Includes an indeterminate number of our debt securities, shares of preferred stock,
shares of common stock or depositary shares or capital securities of the Trust to be issuable
upon the exercise of warrants for such securities. |
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Such indeterminate number of purchase contracts as may, from time to time, be issued at
indeterminate prices obligating holders to purchase from or sell to us, and obligating us to
sell or purchase from the holders, a specific number of our shares of common stock, preferred
stock, debt securities or depositary shares or capital securities of the Trust at a future
date or dates. |
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Such indeterminate amount of capital securities issued by the Trust and guarantees issued by
us as may, from time to time, be issued at indeterminate prices. Our junior subordinated
debentures may be purchased by the Trust with the proceeds of the sale of the capital
securities of the Trust, together with the proceeds received from us for the common securities
to be issued by the Trust to us. No separate consideration will be received for such junior
subordinated debentures. Such junior subordinated debentures may later be distributed for no
additional consideration to the holders of capital securities of the Trust upon certain events
described in the trust agreement. In the event registrant elects to offer to the public
fractional interests in its shares of trust preferred securities registered hereunder,
depository shares, evidenced by depository receipts issued pursuant to a deposit agreement,
will be distributed to those persons purchasing fractional interests and the shares of trust
preferred securities will be issued to the depository under any such agreement. Pursuant to
Rule 457(h) under the Securities Act, no additional registration fee is due for guarantees. |
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Such indeterminate number of units as may, from time to time, be issued at indeterminate
prices, each representing ownership of one or more of the securities described herein. |
The Registrants hereby amend this registration statement on such date or dates as may be
necessary to delay its effective date until the Registrants shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said Section 8(a), shall
determine.
The information in this prospectus is not complete and may be changed. A registration
statement relating to these securities has been filed with the Securities and Exchange Commission
and has not yet been declared effective. The securities may not be sold until the registration
statement has been declared effective. This prospectus is not an offer to sell these securities and
it is not soliciting an offer to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED JUNE 26, 2009
PROSPECTUS
$50,000,000
Bridge Bancorp, Inc.
Debt Securities
Common Stock
Preferred Stock
Depository Shares
Warrants
Purchase Contracts
Units
Bridge Statutory Capital Trust I
Capital Securities
Fully and unconditionally guaranteed by Bridge Bancorp, Inc. as described herein
We and/or Bridge Statutory Capital Trust I, or the Trust, may offer and sell from time to time
up to $50 million of unsecured debt securities, which may consist of notes, debentures, or other
evidences of indebtedness; shares of common stock; shares of preferred stock; depositary shares;
purchase contracts; warrants to purchase other securities; capital securities of the Trust;
guarantees of capital securities of the Trust; and units consisting of any combination of the above
securities. This prospectus provides you with a general description of the securities listed
above. Each time we offer any securities pursuant to this prospectus, we will provide you with a
prospectus supplement, and, if necessary, a pricing supplement, that will describe the specific
amounts, prices and terms of the securities being offered. These supplements may also add, update
or change information contained in this prospectus. To understand the terms of the securities
offered, you should carefully read this prospectus with the applicable supplements, which together
provide the specific terms of the securities we are offering.
Our common stock is traded on the Nasdaq Global Select Market under the symbol BDGE.
This prospectus may be used to offer and sell securities only if accompanied by the prospectus
supplement and any applicable pricing supplement for those securities.
You should read this prospectus and any supplements carefully before you invest. Investing in
our securities or the securities issued by the Trust involves a high degree of risk. See the
section entitled Risk Factors, on page 3 of this prospectus, in any prospectus supplement and in
the documents we file with the SEC that are incorporated in this prospectus by reference for
certain risks and uncertainties you should consider.
These securities are not deposits or obligations of a bank or savings association and are not
insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental
agency.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined that this prospectus or the prospectus
supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2009.
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We may provide information to you about the securities we are offering in three separate
documents that progressively provide more detail:
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this prospectus, which provides general information, some of which may not apply to
your securities;
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a prospectus supplement, which describes the terms of the securities, some of which
may not apply to your securities and which may not include information relating to the
prices of the securities being offered; and |
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if necessary, a pricing supplement, which describes the pricing terms of your
securities. |
If the terms of your securities vary among the pricing supplement, the prospectus supplement
and the prospectus, you should rely on the information in the following order of priority:
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the pricing supplement, if any; |
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the prospectus supplement; and |
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this prospectus. |
We include cross-references in this prospectus and the prospectus supplement to captions in
these materials where you can find further related discussions. The following Table of Contents and
the Table of Contents included in the prospectus supplement provide the pages on which these
captions are located.
Unless indicated in the applicable prospectus supplement, we have not taken any action that
would permit us to publicly sell these securities in any jurisdiction outside the United States. If
you are an investor outside the United States, you should inform yourself about and comply with any
restrictions as to the offering of the securities and the distribution of this prospectus.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission (the SEC) utilizing a shelf registration process. Under this shelf
registration process, we and/or the Trust may from time to time offer and sell the debt securities,
common stock, preferred stock, depositary shares, warrants, purchase contracts, capital securities
of the Trust and guarantees of the capital securities by us, or units consisting of a combination
of any of the securities described in this prospectus in one or more offerings, up to a total
dollar amount of $50 million. This prospectus provides you with a general description of the
securities covered by it. Each time we offer these securities, we will provide a prospectus
supplement and, if necessary, a pricing supplement, that will contain specific information about
the terms of the offer. The prospectus supplement and any pricing supplement may also add, update
or change information contained in this prospectus. You should read this prospectus, the prospectus
supplement and any pricing supplement together with the additional information described under the
heading Where You Can Find More Information.
Unless otherwise indicated or unless the context requires otherwise, all references in this
prospectus to Bridge Bancorp, the Company, we, us, our or similar references mean Bridge
Bancorp, Inc., references to the Bank mean The Bridgehampton National Bank, and references to the
Trust mean Bridge Statutory Capital Trust I.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the SEC. You may read and copy any
document we file at the SECs public reference room at 100 F Street, N.E., Room 1580, Washington,
D.C. 20549. You should call 1-800-SEC-0330 for more information on the public reference room. Our
SEC filings are also available to you on the SECs Internet site at http://www.sec.gov.
This prospectus is part of a registration statement that we filed with the SEC. The
registration statement contains more information than this prospectus regarding us, including
certain exhibits and schedules. You can obtain a copy of the registration statement from the SEC at
the address listed above or from the SECs Internet site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference information into this prospectus. This means
that we can disclose important information to you by referring you to another document that we file
separately with the SEC. The information incorporated by reference is considered to be a part of
this prospectus, except for any information that is superseded by information that is included
directly in this document or in a more recent incorporated document.
This prospectus incorporates by reference the documents listed below that we have previously
filed with the SEC.
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SEC Filings |
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Period or Filing Date (as applicable) |
Annual Report on Form 10-K.
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Year ended December 31, 2008 |
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Quarterly Report on Form 10-Q.
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Quarter ended March 31, 2009 |
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Current Reports on Form 8-K (in each
case other than those portions
furnished under Item 2.02 or 7.01 of
Form 8-K).
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April 24, 2009 |
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April 1, 2009 |
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The description of our common stock
set forth in the registration
statement on Form 8-A12B (No.
001-34096) and any amendment or
report filed with the SEC for the
purpose of updating this description.
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June 9, 2008 |
In addition, we also incorporate by reference all future documents that we file with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of our initial
registration statement relating to the
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securities covered by this prospectus until the completion of the distribution of such
securities. These documents include periodic reports, such as annual reports on Form 10-K,
quarterly reports on Form 10-Q and current reports on Form 8-K (other than current reports
furnished under Items 2.02 or 7.01 of Form 8-K), as well as proxy statements.
The information incorporated by reference contains information about us and our financial
condition and is an important part of this prospectus.
You can obtain any of the documents incorporated by reference in this document through us, or
from the SEC through the SECs Internet site at www.sec.gov. Documents incorporated by reference
are available from us without charge, excluding any exhibits to those documents, unless the exhibit
is specifically incorporated by reference as an exhibit in this prospectus. You can obtain
documents incorporated by reference in this prospectus by requesting them in writing or by
telephone from us at:
Corporate Secretary
Bridge Bancorp, Inc.
2200 Montauk Highway
P.O. Box 3005
Bridgehampton, New York 11932
(631) 537-1000
In addition, we maintain a corporate website, www.bridgenb.com. We make available, through
our website, our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on
Form 8-K, and any amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, or the Exchange Act, as soon as reasonably practicable
after we electronically file such material with, or furnish it to, the SEC. This reference to our
website is for the convenience of investors as required by the SEC and shall not be deemed to
incorporate any information on the website into this Registration Statement.
We have not authorized anyone to give any information or make any representation about us that
is different from, or in addition to, those contained in this prospectus or in any of the materials
that we have incorporated into this prospectus. If anyone does give you information of this sort,
you should not rely on it. If you are in a jurisdiction where offers to sell, or solicitations of
offers to purchase, the securities offered by this document are unlawful, or if you are a person to
whom it is unlawful to direct these types of activities, then the offer presented in this document
does not extend to you. The information contained in this document speaks only as of the date of
this document unless the information specifically indicates that another date applies.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
We make forward-looking statements in this prospectus and the documents incorporated into it
by reference. These forward-looking statements include: statements of goals, intentions, and
expectations; estimates of risks and of future costs and benefits; assessments of probable loan
losses; assessments of market risk; and statements of the ability to achieve financial and other
goals. Forward-looking statements are typically identified by words such as believe, expect,
anticipate, intend, outlook, estimate. forecast, project and other similar words and
expressions. Forward-looking statements are subject to numerous assumptions, risks, and
uncertainties, which may change over time. Forward-looking statements speak only as of the date
they are made. Because forward-looking statements are subject to assumptions and uncertainties,
actual results or future events could differ, possible materially, from those that we anticipated
in our forward-looking statements and future results could differ materially from historical
performance.
Our forward-looking statements are subject to the following principal risks and uncertainties:
changes in economic conditions including an economic recession that could affect the value of real
estate collateral and the ability for borrowers to repay their loans; legislative and regulatory
changes, including increases in FDIC insurance rates; monetary and fiscal policies of the federal
government; changes in tax policies, rates and regulations of federal, state and local tax
authorities; changes in interest rates; deposit flows; the cost of funds; demand for loan products
and other financial services; competition; changes in the quality and composition of the Banks
loan and investment portfolios; changes in managements business strategies; changes in accounting
principles, policies or
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guidelines; changes in real estate values; and a variety of other matters which, by their
nature, are subject to significant uncertainties. We provide greater detail regarding some of
these factors in our Form 10-K for the year ended December 31, 2008, including the Risk Factors
section of that report and in our other filings we make with the SEC. Our forward-looking
statements may also be subject to other risks and uncertainties, including those that we may
discuss elsewhere in other documents we file with the SEC from time to time.
You should not place undue reliance on these forward-looking statements, which reflect our
expectations only as of the date of this prospectus. We do not assume any obligation to revise
forward-looking statements except as may be required by law.
RISK FACTORS
Before making an investment decision, you should carefully consider the risks described under
Risk Factors in the applicable prospectus supplement and in our most recent Annual Report on Form
10-K, and in our updates to those Risk Factors in our Quarterly Reports on Form 10-Q, together with
all of the other information appearing in this prospectus or incorporated by reference into this
prospectus, the prospectus supplement or any applicable pricing supplement, in light of your
particular investment objectives and financial circumstances. In addition to those risk factors,
there may be additional risks and uncertainties of which management is not aware or focused on or
that management deems immaterial. Our business, financial condition or results of operations could
be materially adversely affected by any of these risks. The trading price of our securities could
decline due to any of these risks, and you may lose all or part of your investment.
OUR COMPANY
We are a New York corporation formed in 1988 to become the holding company for The
Bridgehampton National Bank. We are registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended. At March 31, 2009, we had total assets of $813.0 million,
deposits of $705.9 million and total stockholders equity of $58.6 million.
The Bridgehampton National Bank was established in 1910 as a national banking association and
is headquartered in Bridgehampton, New York. The Bank operates fifteen branches on eastern Long
Island. The Bank engages in full service commercial and consumer banking business, including
accepting time, savings and demand deposits from the consumers, businesses and local municipalities
surrounding its branch offices. These deposits, together with funds generated from operations and
borrowings, are invested primarily in commercial real estate, home equity, construction,
residential mortgage and secured and unsecured commercial and consumer loans, as well as Federal
Home Loan Bank, Federal National Mortgage Association, Government National Mortgage Association and
Federal Home Loan Mortgage Corporation mortgage-backed securities and collateralized mortgage
obligations, New York State and local municipal obligations and U.S government sponsored entity
securities. The Banks principal market area is located on eastern Long Island.
The Bank also operates Bridge Abstract LLC, a wholly owned subsidiary of the Bank, which is a
broker of title insurance services. In addition, the Bank has established a real estate investment
trust subsidiary, Bridgehampton Community, Inc.
Our principal executive offices are located at 2200 Montauk Highway, Bridgehampton, New York
11932, and our telephone number is (631) 537-1000.
Additional information about us and our subsidiaries is included in documents incorporated by
reference in this prospectus. See Where You Can Find More Information on page 1 of this
prospectus.
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BRIDGE STATUTORY CAPITAL TRUST I
We have created a statutory trust under Delaware law under a trust agreement established for
the Trust. A trust is a fiduciary relationship where one person known as the trustee, holds some
property for the benefit of another person, in this case, the purchasers of the securities. For the
securities being sold, the trustee and we will enter into an amended and restated trust agreement
that will be essentially in the form filed as an exhibit to the registration statement, which will
state the terms and conditions for each trust to issue and sell the specific capital securities and
common securities.
The Trust exists solely to:
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issue and sell capital securities and common securities; |
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maintain its status as a grantor trust for federal income tax purposes; and |
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engage in other activities that are necessary or incidental to these purposes. |
We will purchase all of the common securities of the Trust.
The common securities will have terms substantially identical to, and will rank equal in
priority of payment with, the capital securities. If we default on the corresponding junior
subordinated debentures, then distributions on the common securities will be subordinate to the
capital securities in priority of payment.
As the direct or indirect holder of the common securities, we will appoint four trustees for
the Trust. One of the trustees will be a U.S. banking institution serving as the property trustee
and one will be a U.S. banking institution which will serve as the Delaware trustee. The other two
trustees will serve as administrative trustees (who are employees or officers of or affiliated with
Bridge Bancorp) to conduct the Trusts business and affairs. As holder of the common securities, we
(except in some circumstances) have the power to:
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appoint trustees; |
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replace or remove the trustees; and issue and sell capital securities and common
securities; and |
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increase or decrease the number of trustees. |
This means that if you are dissatisfied with a trustee you will not be able to remove the
trustee without our assistance. Similarly, if we are dissatisfied with a trustee we can remove the
trustee even if you are satisfied with the trustee.
The property trustee will act as sole trustee under the trust agreement for purposes of
compliance with the Trust Indenture Act and as trustee under the guarantees and junior subordinated
debentures. See Description of Capital Securities and Related Instruments Description of the
Guarantees and Description of Capital Securities and Related Instruments Description of Junior
Subordinated Debentures.
The capital securities will be fully and unconditionally guaranteed by us as described under
Description of Capital Securities and Related Instruments Description of the Guarantees.
The principal executive office of the Trust is c/o Bridge Bancorp, Inc., 2200 Montauk Highway,
Bridgehampton, New York 11932.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges were as follows for the periods
presented:
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Three Months |
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Ended |
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March 31, |
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Years Ended December 31, |
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2009 |
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2008 |
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2007 |
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2006 |
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2005 |
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2004 |
Ratios of Earnings to Fixed
Charges: |
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Including deposit interest |
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2.62x |
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2.34x |
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2.16x |
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2.41x |
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4.24x |
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7.36x |
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Excluding deposit interest |
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17.70x |
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17.30x |
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24.37x |
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20.68x |
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32.96x |
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59.65x |
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For the purpose of computing the consolidated ratio of earnings to fixed charges, earnings
consist of income before income taxes plus fixed charges. Fixed charges consist of interest on
borrowings, including one-third of rent expense, which approximates the interest component of rent
expense. In addition, where indicated fixed charges includes interest on deposits. We currently
have no shares of preferred stock outstanding and have not paid any preferred stock dividends
during the periods presented. A statement setting forth details of the computation of the ratios
of earnings to fixed charges is included as Exhibit 12.1 to the registration statement of which
this prospectus is a part.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the securities for general
corporate purposes unless otherwise indicated in the prospectus supplement relating to a specific
issue of securities. The Companys general corporate purposes will likely include support for
organic growth, and may also include, among other things, financing possible acquisitions of
branches or other financial institutions, diversification into other banking-related businesses,
extending credit to, or funding investments in, our subsidiaries, repaying, reducing or refinancing
indebtedness, or repurchasing our outstanding common stock.
The precise amounts and the timing of our use of the net proceeds will depend upon market
conditions, our subsidiaries funding requirements, the availability of other funds and other
factors. Until we use the net proceeds from the sale of any of the securities for general corporate
purposes, we will use the net proceeds to reduce our indebtedness or for temporary investments. We
expect that we will, on a recurrent basis, engage in additional financings as the need arises to
finance our corporate strategies to support our growth, to fund our subsidiaries, or otherwise.
REGULATION AND SUPERVISION
As a bank holding company controlling the Bank, we are subject to the Bank Holding Company
Act of 1956, as amended (BHCA), and the rules and regulations of the Board of Governors of the
Federal Reserve System (Federal Reserve Board) under the BHCA applicable to bank holding
companies. We are required to file reports with, and otherwise comply with the rules and
regulations of the Federal Reserve Board and the SEC.
Our banking subsidiary, The Bridgehampton National Bank, is a national bank organized under
the laws of the United States of America. The lending, investment, and other business operations of
the Bank are governed by federal law and regulations and the Bank is prohibited from engaging in
any operations not specifically authorized by such laws and regulations. The Bank is subject to
extensive regulation by the Office of the Comptroller of the Currency (OCC) and to a lesser
extent by the Federal Deposit Insurance Corporation (FDIC), as its deposit insurer as well as by
the Federal Reserve Board. The Banks deposit accounts are insured up to applicable limits by the
FDIC under its Deposit Insurance Fund.
These regulatory authorities have extensive enforcement authority over the institutions that
they regulate to prohibit or correct activities that violate law, regulation or a regulatory
agreement or which are deemed to be unsafe or unsound banking practices. Enforcement actions may
include the appointment of a conservator or receiver, the issuance of a cease and desist order, the
termination of deposit insurance, the imposition of civil money penalties on
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the institution, its directors, officers, employees and institution-affiliated parties, the
issuance of directives to increase capital, the issuance of formal and informal agreements, the
removal of or restrictions on directors, officers, employees and institution-affiliated parties,
and the enforcement of any such mechanisms through restraining orders or other court actions. Any
change in laws and regulations, whether by the OCC, the FDIC, the Federal Reserve Board or through
legislation, could have a material adverse impact on us, our operations and our stockholders.
Because we are a holding company, our rights and the rights of our creditors and the holders
of the securities we are offering under this prospectus to participate in the assets of any of our
subsidiaries upon the subsidiarys liquidation or reorganization will be subject to the prior
claims of the subsidiarys creditors, except to the extent that we may ourselves be a creditor with
recognized claims against the subsidiary.
In addition, dividends, loans and advances from the Bank to us are restricted by federal law.
For a discussion of the material elements of the regulatory framework applicable to bank
holding companies and their subsidiaries, and specific information relevant to us and the Bank, you
should refer to our Annual Report on Form 10-K for the year ended December 31, 2008, and any other
subsequent reports filed by us with the SEC, which are incorporated by reference in this
prospectus. This regulatory framework is intended primarily for the protection of depositors and
the Deposit Insurance Fund that insures deposits of the Bank, rather than for the protection of
security holders.
DESCRIPTION OF THE SECURITIES
This prospectus contains a summary of the debt securities, common stock, preferred stock,
depositary shares, warrants, purchase contracts, capital securities and related guarantees, and
units that may be offered under this prospectus. The following summaries are not meant to be a
complete description of each security. However, this prospectus, the prospectus supplement and the
pricing supplement, if applicable, contain the material terms and conditions for each security.
You should read these documents as well as the documents filed as exhibits to or incorporated by
reference to this registration statement. Capitalized terms used in this prospectus that are not
defined will have the meanings given them in these documents.
Description of Debt Securities
General
We may issue senior debt securities or subordinated debt securities. Senior debt securities
will be issued under an indenture, referred to as the senior indenture, and subordinated debt
securities will be issued under a separate indenture, referred to in this Section as the
subordinated indenture. The senior indenture and the subordinated indenture are referred to in
this section as the indentures. The senior debt securities and the subordinated debt securities
are referred to in this section as the debt securities. The debt securities will be our direct
unsecured general obligations.
This prospectus describes the general terms and provisions of the debt securities. When we
offer to sell a particular series of debt securities, we will describe the specific terms of the
securities in a supplement to this prospectus. The prospectus supplement will also indicate
whether the general terms and provisions described in this prospectus apply to a particular series
of debt securities.
The following briefly describes the general terms and provisions of the debt securities and
the indentures. We have not restated these indentures in their entirety in this description. We
have filed the forms of the indentures, including the forms of debt securities, as exhibits to the
registration statement of which this prospectus is a part. We urge you to read the indentures,
because they, and not this description, control your rights as holders of the debt securities. The
following description of the indentures is not complete and is subject to, and qualified in its
entirety by reference to, all the provisions in the respective indentures. In the summary below, we
have included references to section numbers of the applicable indenture so that you can easily
locate these provisions. Capitalized terms used in the summary have the meanings specified in the
indentures.
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Neither indenture limits the amount of debt securities that we may issue under the indenture
from time to time in one or more series. We may in the future issue debt securities under either
indenture. At the date of this prospectus, we had not issued any debt securities under either
indenture.
Neither indenture contains provisions that would afford holders of debt securities protection
in the event of a sudden and significant decline in our credit quality or a takeover,
recapitalization or highly leveraged or similar transaction. Accordingly, we could in the future
enter into transactions that could increase the amount of indebtedness outstanding at that time or
otherwise adversely affect our capital structure or credit rating.
The debt securities will be our exclusive obligations. Neither indenture requires our
subsidiaries to guarantee the debt securities. As a result, the holders of debt securities will
generally have a junior position to claims of all creditors and preferred shareholders of our
subsidiaries.
Terms of Each Series of Debt Securities Provided in the Prospectus Supplement
A prospectus supplement and any supplemental indenture relating to any series of debt
securities being offered will include specific terms relating to the offering. These terms will
include some or all of the following:
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the form and title of the debt securities; |
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whether the debt securities are senior debt securities or subordinated debt
securities and the terms of subordination; |
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the principal amount of the debt securities; |
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the denominations in which the debt securities will be issued; |
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the portion of the principal amount which will be payable if the maturity of the debt
securities is accelerated; |
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the currency or currency unit in which the debt securities will be paid, if not U.S.
dollars; |
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any right we may have to defer payments of interest by extending the dates payments
are due and whether interest on those deferred amounts will be payable as well; |
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the place where the principal of, and premium, if any, and interest on any debt
securities will be payable; |
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the date or dates on which the debt securities will be issued and the principal, and
premium, if any, of the debt securities will be payable; |
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the rate or rates which the debt securities will bear interest and the interest
payment dates for the debt securities; |
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any mandatory or optional redemption provisions; |
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the terms, if any, upon which the debt securities are convertible into other
securities of ours or another issuer and the terms and conditions upon which any
conversion will be effected, including the initial conversion price or rate, the
conversion period and any other provisions in addition to or instead of those described in
this prospectus; |
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any sinking fund or other provisions that would obligate us to repurchase or
otherwise redeem the debt securities; |
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any deletion from, changes of or additions to the covenants or the Events of Default
(as defined below) under Provisions in Both Indentures Events of Default and Remedies; |
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any changes to the terms and condition upon which the debt securities can be defeased
or discharged; |
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any restriction or other provision with respect to the transfer or exchange of the
debt securities; |
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the identity of any other trustee, paying agent and security registrar, if other than
the trustee; and |
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any other terms of the debt securities (Section 301). |
We will maintain in each place specified by us for payment of any series of debt securities an
office or agency where debt securities of that series may be presented or surrendered for payment,
where debt securities of that series may be surrendered for registration of transfer or exchange
and where notices and demands to or upon us in respect of the debt securities of that series and
the related indenture may be served (Section 1002).
Debt securities may be issued under an indenture as original issue discount securities to be
offered and sold at a substantial discount below their principal amount. Material federal income
tax, accounting and other considerations applicable to any such original issue discount securities
will be described in any related prospectus supplement. Original issue discount security means
any security which provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof as a result of the occurrence of
an Event of Default and the continuation thereof (Section 101).
Provisions Only in the Senior Indenture
Payment of the principal, premium, if any, and interest on the senior debt securities will
rank equally in right of payment with all of our other unsecured senior debt.
Provisions Only in the Subordinated Indenture
Payment of the principal, premium, if any, and interest on the subordinated debt securities
will be unsecured and will be subordinate and junior in priority of payment to prior payment in
full of all of our senior indebtedness, including senior debt securities and other debt to the
extent described in a prospectus supplement. (Section 1401 of the subordinated indenture.)
Subordinated Debt Securities Intended to Qualify as Tier 2 Capital
Unless otherwise stated in the applicable prospectus supplement, it is currently intended that
the subordinated debt securities will qualify as Tier 2 Capital under the guidelines established by
the Federal Reserve for bank holding companies. The guidelines set forth specific criteria for
subordinated debt to qualify as Tier 2 Capital. Among other things, the subordinated debt must:
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be unsecured; |
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have a minimum average maturity of five years; |
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be subordinated in right of payment; |
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not contain provisions permitting the holders of the debt to accelerate payment of
principal prior to maturity except in the event of bankruptcy of the issuer; and |
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not contain provisions that would adversely affect liquidity or unduly restrict
managements flexibility to operate the organization, particularly in times of financial
difficulty, such as limitations on additional secured or senior borrowings, sales or
dispositions of assets or changes in control. |
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Provisions in Both Indentures
Consolidation, Merger or Asset Sale
Each indenture generally allows us to consolidate or merge with a domestic person, association
or entity. They also allow us to sell, lease or transfer our property and assets substantially as
an entirety to a domestic person, association or entity. If this happens, the remaining or
acquiring person, association or entity must assume all of our responsibilities and liabilities
under the indentures including the payment of all amounts due on the debt securities and
performance of the covenants in the indentures.
However, we will only consolidate or merge with or into any other person, association or
entity or sell, lease or transfer our assets substantially as an entirety according to the terms
and conditions of the indentures, which require that:
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the remaining or acquiring person, association or entity is organized under the laws
of the United States, any state within the United States or the District of Columbia; |
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the remaining or acquiring person, association or entity assumes our obligations
under the indentures; and |
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immediately after giving effect to the transaction, no Default or Event of Default,
as defined below, shall have occurred and be continuing. |
The remaining or acquiring person, association or entity will be substituted for us in the
indentures with the same effect as if it had been an original party to the indentures. Thereafter,
the successor may exercise our rights and powers under the indentures, in our name or in its own
name. If we sell or transfer all or substantially all of our assets, we will be released from all
our liabilities and obligations under any indenture and under the debt securities. If we lease all
or substantially all of our assets, we will not be released from our obligations under the
indentures. (Sections 801 and 802)
Events of Default and Remedies
In the indentures, Default with respect to any series of debt securities means any event which
is, or after notice or lapse of time or both would become, an Event of Default.
In the indentures, Event of Default with respect to any series of debt securities means any of
the following:
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failure to pay the principal of or any premium on any debt security of that series
when due; |
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failure to pay interest on any debt security of that series for 30 days; |
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subject to certain exceptions, failure to perform any other covenant in the
indenture, other than a covenant default in the performance of which has expressly been
included in the indenture solely for the benefit of series of debt securities other than
that series, that continues for 90 days after being given written notice as specified in
the indenture; |
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our bankruptcy, insolvency or reorganization; or |
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any other Event of Default included in any indenture or supplemental indenture.
(Section 501) |
If an Event of Default with respect to a series of debt securities occurs and is continuing,
the trustee or the holders of at least 25% in principal amount of all of the outstanding debt
securities of a particular series may declare the principal of all the debt securities of that
series to be due and payable. When such declaration is made, such amounts will be immediately due
and payable. The holders of a majority in principal amount of the outstanding debt securities of
such series may rescind such declaration and its consequences if all existing Events of Default
have been cured or waived, other than nonpayment of principal or interest that has become due
solely as a result of acceleration. (Section 502)
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Holders of a series of debt securities may not enforce the indenture or the series of debt
securities, except as provided in the indenture or a series of debt securities. (Section 507) The
trustee may require indemnity satisfactory to it before it enforces the indenture or such series of
debt securities. (Section 603) Subject to certain limitations, the holders of a majority in
principal amount of the outstanding debt securities of a particular series may direct the time,
method and place of conducting any proceeding for any remedy available to the trustee or exercising
any trust or power of the trustee. (Section 512) The trustee may withhold notice to the holders of
debt securities of any default, except in the payment of principal or interest, if it considers
such withholding of notice to be in the best interests of the holders. (Section 602)
An Event of Default for a particular series of debt securities does not necessarily constitute
an Event of Default for any other series of debt securities issued under an indenture. Further, an
Event of Default under the debt securities of any series will not necessarily constitute an event
of default under our other indebtedness or vice versa.
Modification of Indentures
Under each indenture, generally we and the trustee may modify our rights and obligations and
the rights of the holders with the consent of the holders of a majority in aggregate principal
amount of the outstanding debt securities of any series affected by the modification, voting as one
class. No modification of the principal or interest payment terms, no modification reducing the
percentage required for modifications and no modification impairing the right to institute suit for
the payment on debt securities of any series when due, is effective against any holder without its
consent. (Section 902)
In addition, we and the trustee may amend the indentures without the consent of any holder of
the debt securities to make certain technical changes, such as:
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curing ambiguities or correcting defects or inconsistencies; |
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evidencing the succession of another person to us, and the assumption by that
successor of our obligations under the applicable indenture and the debt securities of any
series; |
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providing for a successor trustee; |
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qualifying the indentures under the Trust Indenture Act of 1939, as amended, which we
refer to in this prospectus as the Trust Indenture Act; |
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complying with the rules and regulations of any securities exchange or automated
quotation system on which debt securities of any series may be listed or traded; or |
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adding provisions relating to a particular series of debt securities. (Section 901) |
Discharging Our Obligations
We may choose either to discharge our obligations on the debt securities of any series in a
legal defeasance, or to release ourselves from our covenant restrictions on the debt securities of
any series in a covenant defeasance. We may do so at any time on the 91st day after we deposit with
the trustee sufficient cash or government securities to pay the principal, interest, any premium
and any other sums due to the stated maturity date or a redemption date of the debt securities of
the series. If we choose the legal defeasance option, the holders of the debt securities of the
series will not be entitled to the benefits of the indenture except for registration of transfer
and exchange of debt securities, replacement of lost, stolen or mutilated debt securities,
conversion or exchange of debt securities, sinking fund payments and receipt of principal and
interest on the original stated due dates or specified redemption dates. (Section 1302)
We may discharge our obligations on the debt securities of any series or release ourselves
from covenant restrictions only if we meet certain requirements. Among other things, we must
deliver an opinion of our legal counsel that the discharge will not result in holders having to
recognize taxable income or loss or subject them to different tax treatment. In the case of legal
defeasance, this opinion must be based on either an IRS letter ruling or
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change in federal tax law. We may not have a default on the debt securities discharged on the
date of deposit. The discharge may not violate any of our agreements. The discharge may not result
in our becoming an investment company in violation of the Investment Company Act of 1940.
Information Concerning the Indenture Trustee
Under provisions of the indentures and the Trust Indenture Act, if a trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act, the trustee shall
either eliminate such interest or resign in the manner provided by the indentures. Any resignation
will require the appointment of a successor trustee under the applicable indenture in accordance
with its terms and conditions.
The trustee may resign or be removed by us with respect to one or more series of debt
securities and a successor trustee may be appointed to act with respect to any such series. The
holders of a majority in aggregate principal amount of the debt securities of any series may remove
the trustee with respect to the debt securities of such series. (Section 610)
Each indenture contains certain limitations on the right of the trustee thereunder, in the
event that it becomes our creditor, to obtain payment of claims in some cases, or to realize on
property received in respect of any such claim, as security or otherwise. (Section 613)
The trustee is required to submit an annual report to the holders of the debt securities
regarding, among other things, the trustees eligibility to serve, the priority of the trustees
claims regarding certain advances made by it, and any action taken by the trustee materially
affecting the debt securities.
Each indenture provides that, in addition to other certificates or opinions that may be
specifically required by other provisions of an indenture, every application by us for action by
the trustee shall be accompanied by a certificate of our officers and an opinion of counsel, who
may be our counsel, stating that, in the opinion of the signers, we have complied with all
conditions precedent to the action. (Section 102)
No Personal Liability of Officers, Directors, Employees or Shareholders
Our officers, directors, employees and shareholders will not have any liability for our
obligations under the indentures or the debt securities by way of his or her status. Each holder of
debt securities, by accepting a debt security, waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the debt securities.
Form, Denominations and Registration; Global Securities; Book Entry Only System
Unless otherwise indicated in a prospectus supplement, the debt securities of a series will be
issued only in fully registered form, without coupons, in denominations of $1,000 or integral
multiples thereof. (Section 302) You will not have to pay a service charge to transfer or exchange
debt securities of a series, but we may require you to pay for taxes or other governmental charges
due upon a transfer or exchange. (Section 305)
Unless otherwise indicated in a prospectus supplement, each series of debt securities will be
deposited with, or on behalf of, The Depository Trust Company, or DTC, or any successor depositary,
which we call a depositary, and will be represented by one or more global notes registered in the
name of Cede & Co., as nominee of DTC. The interests of beneficial owners in the global notes will
be represented through financial institutions acting on their behalf as direct or indirect
participants in DTC. See Description of Global Securities, for the procedures for transfer of
interests in securities held in global form.
Description of Common Stock
We are authorized to issue 22,000,000 shares of capital stock, 20,000,000 of which are shares
of common stock, par value of $0.01 per share, and 2,000,000 of which are shares of preferred
stock, par value of $0.01 per share. As of June 22, 2009, we had 6,219,978 shares of common stock
outstanding, and no shares of preferred stock outstanding.
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Each share of common stock has the same relative rights as, and is identical in all respects
to, each other share of common stock.
Dividends
The holders of our common stock are entitled to receive and share equally in such dividends,
if any, declared by the board of directors out of funds legally available therefor. Under the New
York Business Corporation Law, we may pay dividends on our outstanding shares except when the
Company is insolvent or would be made insolvent by the dividend. In addition, we may pay dividends
out of surplus only, so that our net assets remaining after such payment shall at least equal the
amount of stated capital. If we issue preferred stock, the holders thereof may have a priority
over the holders of our common stock with respect to dividends.
Voting Rights
The holders of our common stock are generally entitled to one vote per share. Holders of our
common stock are not entitled to cumulate their votes in the election of directors.
Liquidation
In the event of our liquidation, dissolution or winding up, the holders of our common stock
would be entitled to receive, after payment or provision for payment of all our debts and
liabilities and the holders of any preferred stock, all of our assets available for distribution.
No Preemptive or Redemption Rights
Holders of our common stock are not entitled to preemptive rights with respect to any shares
that may be issued. The common stock is not subject to redemption.
Provisions in Our Certificate of Incorporation, Our Bylaws and Federal Law Affecting Our
Shareholders
Our certificate of incorporation and bylaws contain a number of provisions relating to
corporate governance and rights of shareholders that might discourage future takeover attempts. As
a result, shareholders who might desire to participate in such transactions may not have an
opportunity to do so. In addition, these provisions will also render the removal of our board of
directors or management more difficult. Such provisions include, among others, the requirement of
a supermajority vote of shareholders to approve certain business combinations and other corporate
actions, special procedural rules for certain business combinations, a classified board of
directors, restrictions on the calling of special meetings of shareholders that do not provide for
the calling of special meetings by the shareholders, and a provision in our certificate of
incorporation allowing the board of directors to oppose a tender or other offer for our securities,
including through the issuance of authorized but unissued securities or treasury stock or granting
stock options, based on a wide range of considerations. The foregoing is qualified in its entirety
by reference to our certificate of incorporation and bylaws, both of which are on file with the
SEC.
The Bank Holding Company Act generally would prohibit any company that is not engaged in
financial activities and activities that are permissible for a bank holding company or a financial
holding company from acquiring control of us. Control is generally defined as ownership of 25% or
more of the voting stock or other exercise of a controlling influence. In addition, any existing
bank holding company would need the prior approval of the Federal Reserve before acquiring 5% or
more of our voting stock. The Change in Bank Control Act of 1978, as amended, prohibits a person
or group of persons from acquiring control of a bank holding company unless the Federal Reserve has
been notified and has not objected to the transaction. Under a rebuttable presumption established
by the Federal Reserve, the acquisition of 10% or more of a class of voting stock of a bank holding
company with a class of securities registered under Section 12 of the Exchange Act, such as us,
could constitute acquisition of control of the bank holding company.
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Description of Preferred Stock
The following summary contains a description of the general terms of the preferred stock that
we may issue. The specific terms of any series of preferred stock will be described in the
prospectus supplement relating to that series of preferred stock. The terms of any series of
preferred stock may differ from the terms described below. Certain provisions of the preferred
stock described below and in any prospectus supplement are not complete. You should refer to the
amendment to our certificate of incorporation or the certificate of amendment pursuant to
applicable New York State law with respect to the establishment of a series of preferred stock
which will be filed with the SEC in connection with the offering of such series of preferred stock.
General
Our certificate of incorporation permits our board of directors to authorize the issuance of
up to 2,000,000 shares of preferred stock, par value $0.01, in one or more series, without
stockholder action. The board of directors can fix the number of shares to be included in each such
series, and the designation, powers, preferences, and rights of the shares of each such series and
any qualifications, limitations or restrictions thereof. Therefore, without stockholder approval,
our board of directors can authorize the issuance of preferred stock with voting, dividend,
liquidation and conversion and other rights that could dilute the voting power of the common stock
and may assist management in impeding any unfriendly takeover or attempted change in control. None
of our preferred stock is currently outstanding.
The preferred stock has the terms described below unless otherwise provided in the prospectus
supplement relating to a particular series of the preferred stock. You should read the prospectus
supplement relating to the particular series of the preferred stock being offered for specific
terms, including:
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the designation and stated value per share of the preferred stock and the number of
shares offered; |
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the amount of liquidation preference per share; |
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the price at which the preferred stock will be issued; |
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the dividend rate, or method of calculation, the dates on which dividends will be
payable, whether dividends will be cumulative or noncumulative and, if cumulative, the
dates from which dividends will commence to accumulate; |
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any redemption or sinking fund provisions; |
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any conversion provisions; and |
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any other rights, preferences, privileges, limitations and restrictions on the
preferred stock. |
The preferred stock will, when issued, be fully paid and nonassessable. Unless otherwise
specified in the prospectus supplement, each series of the preferred stock will rank equally as to
dividends and liquidation rights in all respects with each other series of preferred stock. The
rights of holders of shares of each series of preferred stock will be subordinate to those of our
general creditors.
We may, at our option, with respect to any series of the preferred stock, elect to offer
fractional interests in shares of preferred stock, which we call depositary shares. See
Description of Depositary Shares, below.
Rank
Any series of the preferred stock will, with respect to the priority of the payment of
dividends and the priority of payments upon liquidation, winding up and dissolution, rank:
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senior to all classes of common stock and all equity securities issued by us the terms
of which specifically provide that the equity securities will rank junior to the
preferred stock (the junior securities); |
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equally with all equity securities issued by us the terms of which specifically
provide that the equity securities will rank equally with the preferred stock (the parity
securities); and |
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junior to all equity securities issued by us the terms of which specifically provide
that the equity securities will rank senior to the preferred stock. |
Dividends
Holders of the preferred stock of each series will be entitled to receive, when, as and if
declared by our board of directors, cash dividends at such rates and on such dates described, if
any, in the prospectus supplement. Different series of preferred stock may be entitled to dividends
at different rates or based on different methods of calculation. The dividend rate may be fixed or
variable or both. Dividends will be payable to the holders of record as they appear on our stock
books on record dates fixed by our board of directors, as specified in the applicable prospectus
supplement.
Dividends on any series of the preferred stock may be cumulative or noncumulative, as
described in the applicable prospectus supplement. If our board of directors does not declare a
dividend payable on a dividend payment date on any series of noncumulative preferred stock, then
the holders of that noncumulative preferred stock will have no right to receive a dividend for that
dividend payment date, and we will have no obligation to pay the dividend accrued for that period,
whether or not dividends on that series are declared payable on any future dividend payment dates.
Dividends on any series of cumulative preferred stock will accrue from the date we initially issue
shares of such series or such other date specified in the applicable prospectus supplement.
No full dividends may be declared or paid or funds set apart for the payment of any dividends
on any parity securities unless dividends have been paid or set apart for payment on the preferred
stock. If full dividends are not paid, the preferred stock will share dividends pro rata with the
parity securities. No dividends may be declared or paid or funds set apart for the payment of
dividends on any junior securities unless full cumulative dividends for all dividend periods
terminating on or prior to the date of the declaration or payment will have been paid or declared
and a sum sufficient for the payment set apart for payment on the preferred stock.
Our ability to pay dividends on our preferred stock is limited by the New York State Business
Corporation Law.
Rights Upon Liquidation
If we dissolve, liquidate or wind up our affairs, either voluntarily or involuntarily, the
holders of each series of preferred stock will be entitled to receive, before any payment or
distribution of assets is made to holders of junior securities, liquidating distributions in the
amount described in the prospectus supplement relating to that series of the preferred stock, plus
an amount equal to accrued and unpaid dividends and, if the series of the preferred stock is
cumulative, for all dividend periods prior to that point in time. If the amounts payable with
respect to the preferred stock of any series and any other parity securities are not paid in full,
the holders of the preferred stock of that series and of the parity securities will share
proportionately in the distribution of our assets in proportion to the full liquidation preferences
to which they are entitled. After the holders of preferred stock and the parity securities are paid
in full, they will have no right or claim to any of our remaining assets.
Because we are a bank holding company, our rights, the rights of our creditors and of our
stockholders, including the holders of the preferred stock offered by this prospectus, to
participate in the assets of any subsidiary upon the subsidiarys liquidation or recapitalization
may be subject to the prior claims of the subsidiarys creditors except to the extent that we may
ourselves be a creditor with recognized claims against the subsidiary.
Redemption
We may provide that a series of the preferred stock may be redeemable, in whole or in part, at
our option. In addition, a series of preferred stock may be subject to mandatory redemption
pursuant to a sinking fund or
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otherwise. The redemption provisions that may apply to a series of preferred stock, including
the redemption dates and the redemption prices for that series, will be described in the prospectus
supplement.
In the event of partial redemptions of preferred stock, whether by mandatory or optional
redemption, our board of directors will determine the method for selecting the shares to be
redeemed, which may be by lot or pro rata or by any other method determined to be equitable.
On or after a redemption date, unless we default in the payment of the redemption price,
dividends will cease to accrue on shares of preferred stock called for redemption. In addition, all
rights of holders of the shares will terminate except for the right to receive the redemption
price.
Unless otherwise specified in the applicable prospectus supplement for any series of preferred
stock, if any dividends on any other series of preferred stock ranking equally as to payment of
dividends and liquidation rights with such series of preferred stock are in arrears, no shares of
any such series of preferred stock may be redeemed, whether by mandatory or optional redemption,
unless all shares of preferred stock are redeemed, and we will not purchase any shares of such
series of preferred stock. This requirement, however, will not prevent us from acquiring such
shares pursuant to a purchase or exchange offer made on the same terms to holders of all such
shares outstanding.
Voting Rights
Unless otherwise described in the applicable prospectus supplement, holders of the preferred
stock will have no voting rights except as otherwise required by law or in our certificate of
organization.
Exchangeability
The terms on which shares of preferred stock of any series may be converted into or exchanged
for another class or series of securities will be described in the applicable prospectus
supplement.
Unless otherwise indicated in a prospectus supplement, each series of preferred stock may be
deposited with, or on behalf of, DTC or any successor depositary and represented by one or more
global securities registered in the name of Cede & Co., as nominee of DTC. The interests of
beneficial owners in the global securities will be represented through financial institutions
acting on their behalf as direct or indirect participants in DTC. See Description of Global
Securities for the procedures for transfer of interests in securities held in global form.
Description of Depositary Shares
General
We may, at our option, elect to offer fractional shares of preferred stock, which we call
depositary shares, rather than full shares of preferred stock. If we do, we will issue to the
public receipts, called depositary receipts, for depositary shares, each of which will represent a
fraction, to be described in the prospectus supplement, of a share of a particular series of
preferred stock.
The shares of any series of preferred stock represented by depositary shares will be deposited
with a depositary named in the prospectus supplement. Unless otherwise provided in the prospectus
supplement, each owner of a depositary share will be entitled, in proportion to the applicable
fractional interest in a share of preferred stock represented by the depositary share, to all the
rights and preferences of the preferred stock represented by the depositary share. Those rights
include dividend, voting, redemption, conversion and liquidation rights.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received in
respect of the preferred stock to the record holders of depositary shares in proportion to the
numbers of depositary shares owned by those holders.
If there is a distribution other than in cash, the depositary will distribute property
received by it to the record holders of depositary shares, unless the depositary determines that it
is not feasible to make the distribution.
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If this occurs, the depositary may, with our approval, sell the property and distribute the
net proceeds from the sale to the holders.
Withdrawal of Stock
Unless the related depositary shares have been previously called for redemption, upon
surrender of the depositary receipts at the office of the depositary, the holder of the depositary
shares will be entitled to delivery, at the office of the depositary to or upon his or her order,
of the number of whole shares of the preferred stock and any money or other property represented by
the depositary shares. If the depositary receipts delivered by the holder evidence a number of
depositary shares in excess of the number of depositary shares representing the number of whole
shares of preferred stock to be withdrawn, the depositary will deliver to the holder at the same
time a new depositary receipt evidencing the excess number of depositary shares. In no event will
the depositary deliver fractional shares of preferred stock upon surrender of depositary receipts.
Redemption of Depositary Shares
Whenever we redeem shares of preferred stock held by the depositary, the depositary will
redeem as of the same redemption date the number of depositary shares representing shares of the
preferred stock so redeemed, so long as we have paid in full to the depositary the redemption price
of the preferred stock to be redeemed plus an amount equal to any accumulated and unpaid dividends
on the preferred stock to the date fixed for redemption. The redemption price per depositary share
will be equal to the redemption price and any other amounts per share payable on the preferred
stock multiplied by the fraction of a share of preferred stock represented by one depositary share.
If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed
will be selected by lot or pro rata or by any other equitable method as may be determined by the
depositary.
After the date fixed for redemption, depositary shares called for redemption will no longer be
deemed to be outstanding and all rights of the holders of depositary shares will cease, except the
right to receive the moneys payable upon redemption and any money or other property to which the
holders of the depositary shares were entitled upon redemption upon surrender to the depositary of
the depositary receipts evidencing the depositary shares.
Voting the Depositary Shares
Upon receipt of notice of any meeting at which the holders of the preferred stock are entitled
to vote, the depositary will mail the information contained in the notice of meeting to the record
holders of the depositary receipts relating to that preferred stock. The record date for the
depositary receipts relating to the preferred stock will be the same date as the record date for
the preferred stock. Each record holder of the depositary shares on the record date will be
entitled to instruct the depositary as to the exercise of the voting rights pertaining to the
number of shares of preferred stock represented by that holders depositary shares. The depositary
will endeavor, insofar as practicable, to vote the number of shares of preferred stock represented
by the depositary shares in accordance with those instructions, and we will agree to take all
action which may be deemed necessary by the depositary in order to enable the depositary to do so.
The depositary will not vote any shares of preferred stock except to the extent it receives
specific instructions from the holders of depositary shares representing that number of shares of
preferred stock.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. We will pay charges of the depositary in connection with
the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of
depositary receipts will pay other transfer and other taxes and governmental charges and such other
charges as are expressly provided in the deposit agreement to be for their accounts.
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Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its election to do so, and
we may remove the depositary at any time. Any resignation or removal of the depositary will take
effect upon our appointment of a successor depositary and its acceptance of such appointment. The
successor depositary must be appointed within 60 days after delivery of the notice of resignation
or removal and must be a bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000.
Notices
The depositary will forward to holders of depositary receipts all notices, reports and other
communications, including proxy solicitation materials received from us, which are delivered to the
depositary and which we are required to furnish to the holders of the preferred stock.
Limitation of Liability
Neither we nor the depositary will be liable if either of us is prevented or delayed by law or
any circumstance beyond our control in performing our obligations. Our obligations and those of the
depositary will be limited to performance in good faith of our and their duties thereunder. We and
the depositary will not be obligated to prosecute or defend any legal proceeding in respect of any
depositary shares or preferred stock unless satisfactory indemnity is furnished. We and the
depositary may rely upon written advice of counsel or accountants, on information provided by
persons presenting preferred stock for deposit, holders of depositary receipts or other persons
believed to be competent and on documents believed to be genuine.
Description of the Warrants
We may issue warrants to purchase debt securities, preferred stock, depositary shares or
common stock. We may offer warrants separately or together with one or more additional warrants,
debt securities, preferred stock, depositary shares or common stock, or any combination of those
securities in the form of units, as described in the appropriate prospectus supplement. If we issue
warrants as part of a unit, the accompanying prospectus supplement will specify whether those
warrants may be separated from the other securities in the unit prior to the warrants expiration
date. Below is a description of certain general terms and provisions of the warrants that we may
offer. Further terms of the warrants will be described in the prospectus supplement.
The applicable prospectus supplement will contain, where applicable, the following terms of
and other information relating to the warrants:
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the specific designation and aggregate number of, and the price at which we will issue,
the warrants; |
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the currency or currency units in which the offering price, if any, and the exercise
price are payable; |
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the date on which the right to exercise the warrants will begin and the date on which
that right will expire or, if you may not continuously exercise the warrants throughout
that period, the specific date or dates on which you may exercise the warrants; |
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any applicable anti-dilution provisions; |
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any applicable redemption or call provisions; |
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the circumstances under which the warrant exercise price may be adjusted; |
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whether the warrants will be issued in fully registered form or bearer form, in
definitive or global form or in any combination of these forms, although, in any case, the
form of a warrant included in a unit will correspond to the form of the unit and of any
security included in that unit; |
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any applicable material United States federal income tax consequences; |
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the identity of the warrant agent for the warrants and of any other depositaries,
execution or paying agents, transfer agents, registrars or other agents; |
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the proposed listing, if any, of the warrants or any securities purchasable upon
exercise of the warrants on any securities exchange; |
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the designation and terms of the debt securities, preferred stock, depositary shares or
common stock purchasable upon exercise of the warrants; |
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the designation, aggregate principal amount, currency and terms of the debt securities
that may be purchased upon exercise of the warrants; |
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if applicable, the designation and terms of the debt securities, preferred stock,
depositary shares or common stock with which the warrants are issued and the number of
warrants issued with each security; |
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if applicable, the date from and after which the warrants and the related debt
securities, preferred stock, depositary shares or common stock will be separately
transferable; |
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the principal amount of debt securities, the number of shares of preferred stock, the
number of depositary shares or the number of shares of common stock purchasable upon
exercise of a warrant and the price at which those shares may be purchased; |
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if applicable, the minimum or maximum amount of the warrants that may be exercised at
any one time; |
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information with respect to book-entry procedures, if any; |
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the antidilution provisions of the warrants, if any; |
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any redemption or call provisions; |
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whether the warrants are to be sold separately or with other securities as parts of
units; and |
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any additional terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the warrants. |
Description of Purchase Contracts
We may issue purchase contracts, including purchase contracts issued as part of a unit with
one or more other securities, for the purchase or sale of our debt securities, preferred stock,
depositary shares or common stock. The price of our debt securities or price per share of common
stock, preferred stock or depositary shares, as applicable, may be fixed at the time the purchase
contracts are issued or may be determined by reference to a specific formula contained in the
purchase contracts. We may issue purchase contracts in such amounts and in as many distinct series
as we wish.
The applicable prospectus supplement may contain, where applicable, the following information
about the purchase contracts issued under it:
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whether the purchase contracts obligate the holder to purchase or sell, or both, our
debt securities, common stock, preferred stock or depositary shares, as applicable, and
the nature and amount of each of those securities, or method of determining those
amounts; |
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whether the purchase contracts are to be prepaid or not; |
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whether the purchase contracts are to be settled by delivery, or by reference or
linkage to the value, performance or level of our common stock or preferred stock; |
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any acceleration, cancellation, termination or other provisions relating to the
settlement of the purchase contracts; |
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United States federal income tax considerations relevant to the purchase contracts;
and |
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whether the purchase contracts will be issued in fully registered global form. |
The applicable prospectus supplement will describe the terms of any purchase contracts. The
preceding description and any description of purchase contracts in the applicable prospectus
supplement does not purport to be complete and is subject to and is qualified in its entirety by
reference to the purchase contract agreement and, if applicable, collateral arrangements and
depositary arrangements relating to such purchase contracts.
Description of Units
We may issue units comprised of two or more of the other securities described in this
prospectus in any combination. Each unit will be issued so that the holder of the unit is also the
holder of each security included in the unit. Thus, the holder of a unit will have the rights and
obligations of a holder of each included security. The unit agreement under which a unit is issued
may provide that the securities included in the unit may not be held or transferred separately, at
any time or at any time before a specified date.
The applicable prospectus supplement may describe:
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the designation and terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may be held or transferred
separately; |
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any provisions for the issuance, payment, settlement, transfer or exchange of the units
or of the securities comprising the units; |
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the terms of the unit agreement governing the units; |
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United States federal income tax considerations relevant to the units; and |
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whether the units will be issued in fully registered or global form. |
The preceding description and any description of units in the applicable prospectus supplement
does not purport to be complete and is subject to and is qualified in its entirety by reference to
the form of unit agreement which will be filed with the SEC in connection with the offering of such
units, and, if applicable, collateral arrangements and depositary arrangements relating to such
units.
Description of Capital Securities of the Trust and Related Instruments
Information about Bridge Statutory Capital Trust I, or the Trust, is provided above under
Bridge Statutory Capital Trust I. The Trust may issue preferred securities, referred to herein
as capital securities, from time to time. The specific terms of any capital securities will be
described in one or more prospectus supplements relating to those securities and other offering
materials we may provide. Capital securities will be issued pursuant to the terms of an amended and
restated trust agreement, referred to herein as the trust agreement, between us, as sponsor of
the Trust, one or more independent banks qualified under the Trust Indenture Act of 1939 as
trustees, and the individuals we appoint as administrators of the Trust. The trust agreement will
be qualified as an indenture under the Trust Indenture Act. The forms of trust agreement and
capital securities have been or will be filed as an exhibit to the registration statement of which
this prospectus forms a part.
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Description of Capital Securities
General
This section describes the general terms and provisions of the capital securities that are
offered by this prospectus. A prospectus supplement will describe the specific terms of the series
of the capital securities offered under the prospectus supplement and any general terms outlined in
this section that will not apply to those capital securities. Because this is only a summary, it
does not contain all of the details found in the full text of the trust agreement and the capital
securities. If you would like additional information, you should read the form of trust agreement
and the form of capital securities.
The capital securities will have the terms described in the trust agreement or made part of
the trust agreement by the Trust Indenture Act or the Delaware Statutory Trust Act. The terms of
the capital securities will mirror the terms of the junior subordinated debt securities held by the
Trust. See -Description of Junior Subordinated Debt Securities below.
The trust agreement authorizes the Trust to issue on behalf of the Trust one series of capital
securities and one series of common securities containing the terms described in the applicable
prospectus supplement. The proceeds from the sale of the capital securities and common securities
will be used by the Trust to purchase a series of junior subordinated debt securities from us. The
junior subordinated debt securities will be held in trust by the property trustee for your benefit
and the benefit of the holder of the common securities.
Under the guarantee, we will agree to make payments of distributions and payments on
redemption or liquidation of the capital securities, to the extent that the Trust holds funds
available for this purpose and has not made such payments. See Description of the Guarantees.
The assets of the Trust available for distribution to you will be limited to payments received
from us under the junior subordinated debt securities. If we fail to make a payment on the junior
subordinated debt securities, the property trustee will not have sufficient funds to make related
payments, including distributions, on the capital securities.
Each guarantee, when taken together with our obligations under the junior subordinated debt
securities and the indenture, the trust agreement and the expense agreement, will provide a full
and unconditional guarantee of amounts due on the capital securities issued by the Trust.
The Trust will redeem an amount of capital securities equal to the amount of the junior
subordinated debt securities redeemed.
Specific terms relating to the capital securities will be described in the prospectus
supplement, including:
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the name of the capital securities; |
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the dollar amount and number of capital securities issued; |
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the annual distribution rate(s) (or method of determining this rate(s)), the payment
date(s) and the record dates used to determine the holders who are to receive
distributions; |
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the date from which distributions shall be cumulative; |
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the optional redemption provisions, if any, including the prices, time periods and
other terms and conditions for which the capital securities shall be purchased or redeemed,
in whole or in part; |
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the terms and conditions of any right to convert or exchange the capital securities
into or for common or preferred stock or other securities of ours, into or for common or
preferred stock or other securities of an entity affiliated with us or debt or equity or
other securities of an entity not affiliated with us, or for the cash value of our stock or
any of the above securities, the terms on which conversion or exchange may |
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occur, including whether conversion or exchange is mandatory, at the option of the holder or
at our option, the period during which conversion or exchange may occur, the initial
conversion or exchange price or rate and the circumstances or manner in which the amount of
common or preferred stock or other securities issuable upon conversion or exchange may be
adjusted; |
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the terms and conditions, if any, under which the junior subordinated debt securities
are distributed to you by the Trust; |
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any securities exchange on which the capital securities are listed; |
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whether the capital securities are to be issued in book-entry form and represented by
one or more global certificates, and if so, the depositary for the global certificates and
the specific terms of the depositary arrangements; and |
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any other relevant rights, preferences, privileges, limitations or restrictions of the
capital securities. |
The prospectus supplement will also describe some U.S. federal income tax considerations
applicable to any offering of capital securities.
Corresponding Junior Subordinated Debt Securities
The junior subordinated debt securities are issued in one or more series of junior
subordinated debt securities under the indenture with terms corresponding to the terms of a series
of related capital securities. Concurrently with the issuance of the Trusts capital securities,
the Trust will invest the proceeds and the consideration paid by us for the related common
securities in a series of junior subordinated debt securities. The series of junior subordinated
debt securities will be in the principal amount equal to the aggregate stated Liquidation Amount of
the related capital securities and the common securities of the Trust and will rank equally with
all other series of junior subordinated debt securities. As a holder of the related capital
securities for the junior subordinated debt securities, you will have rights in connection with
modifications to the indenture or at the occurrence of events of default under the indenture
described under Description of Junior Subordinated Debt SecuritiesModification of Indenture and
Events of Default, unless provided otherwise in the prospectus supplement for these capital
securities.
Unless otherwise specified in the prospectus supplement, if a Tax Event relating to the Trust
occurs and is continuing, we have the option, and subject to prior approval by the Federal Reserve
Board (if required at the time under applicable capital guidelines or policies), to redeem the
corresponding junior subordinated debt securities at any time within 90 days of the occurrence of
the Tax Event, in whole but not in part, at the redemption price. As long as the Trust is the
holder of all outstanding series of corresponding junior subordinated debt securities, the Trust
will use the proceeds of the redemption to redeem the capital securities and common securities in
accordance with their terms. We may not redeem the junior subordinated debt securities in part,
unless all accrued and unpaid interest has been paid in full on all outstanding corresponding
junior subordinated debt securities of the applicable series.
We will covenant in the indenture that if and as long as:
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the Trust is the holder of all the junior subordinated debt securities; |
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a Tax Event related to the Trust has occurred and is continuing; and |
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we have elected, and have not revoked our election to pay Additional Sums for the
capital securities and common securities, |
we will pay to the trust the Additional Sums.
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We will also covenant in the indenture, as to the junior subordinated debt securities:
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to maintain directly or indirectly 100% ownership of the common securities of the
Trust, provided that some successors which are permitted under the indenture, may succeed
to our ownership of the common securities; |
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not to voluntarily terminate, wind-up or liquidate the Trust, except: |
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with prior approval of the Federal Reserve Board if then so required
under applicable capital guidelines or policies of the Federal Reserve Board; or |
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in connection with a distribution of the junior subordinated debt
securities to the holders of the capital securities in liquidation of the Trust, or
in connection with some mergers, consolidations or amalgamations permitted by the
related trust agreement; and |
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to use our reasonable efforts, consistent with the terms and provisions of the
related trust agreement, to cause the Trust to remain classified as a grantor trust and
not as an association taxable as a corporation for United States federal income tax
purposes. |
To the extent specified in the prospectus supplement and if the junior subordinated debt
securities are not in default, we shall have the right at any time and from time to time during the
term of the junior subordinated debt securities to defer payment of interest for up to five
consecutive years or such longer period as specified in the applicable prospectus supplement (an
extension period, which we also sometimes refer to as a deferral period). No deferral period
will extend past the maturity date of the junior subordinated debt securities.
During any such extension period, we will not declare or pay any dividend on, make any
distributions relating to, or redeem, purchase, acquire or make a liquidation payment relating to,
any of our capital stock or make any guarantee payment with respect thereto other than:
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repurchases, redemptions or other acquisitions of shares of our capital stock in
connection with any employment contract, benefit plan or other similar arrangement with
or for the benefit of employees, officers, directors or consultants; |
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repurchases of shares of our common stock pursuant to a contractually binding
requirement to buy stock existing prior to the commencement of the extension period,
including under a contractually binding stock repurchase plan; |
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as a result of an exchange or conversion of any class or series of our capital
stock for any other class or series of our capital stock; |
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the purchase of fractional interests in shares of our capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being converted
or exchanged; |
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purchase of our capital stock in connection with the distribution thereof; |
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any declaration of a dividend in connection with any rights plan, or the issuance
of rights, stock or other property under any rights plan, or the redemption or repurchase
of rights pursuant thereto; or |
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any dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or other
rights is the same stock as that on which the dividend is being paid or ranks equally
with or junior to such stock. |
Except as described in any prospectus supplement, we will not make any payment of interest,
principal or premium on, or repay, repurchase or redeem, any debt securities or guarantees issued
by us that rank equally with or junior to the junior subordinated debt securities.
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The foregoing, however, will not apply to any stock dividends paid by us where the dividend
stock is the same stock as that on which the dividend is being paid. We may pay current interest at
any time with cash from any source.
Some U.S. federal income tax consequences and considerations applicable to any junior
subordinated debt securities that permit extension periods will be described in the applicable
prospectus supplement.
Redemption, Exchange or Conversion
Mandatory Redemption. If the junior subordinated debt securities are repaid or redeemed in
whole or in part, whether at maturity or upon earlier redemption, the property trustee will use the
proceeds from this repayment or redemption to redeem a Like Amount of the capital securities and
common securities. The property trustee will give you at least 30 days notice, but not more than
60 days notice, before the date of redemption. The capital securities and (unless there is a
default under the junior subordinated debt securities) the common securities will be redeemed at
the redemption price at the concurrent redemption of the junior subordinated debt securities. See
Description of Junior Subordinated Debt SecuritiesRedemption.
If less than all of any series of the junior subordinated debt securities are to be repaid or
redeemed on a date of redemption, then the proceeds from the repayment or redemption shall be
allocated, pro rata, to the redemption of the related capital securities and the common securities.
We may redeem the junior subordinated debt securities:
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on or after the date as specified in the applicable prospectus supplement, in
whole at any time or in part, from time to time; |
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at any time, in whole (but not in part), upon the occurrence of a Tax Event, an
Investment Company Event or a Capital Treatment; or |
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as is otherwise specified in the applicable prospectus supplement. |
Tax Event, Investment Company Event Redemption or Regulatory Capital Event. If a Tax Event,
Investment Company Event or Regulatory Capital Event relating to a series of capital securities and
common securities shall occur and be continuing, we may redeem the junior subordinated debt
securities in whole, but not in part. This will cause a mandatory redemption of all of the related
capital securities and common securities at the redemption price within 90 days following the
occurrence of the Tax Event, Investment Company Event or Regulatory Capital Event.
If a Tax Event, Investment Company Event or Regulatory Capital Event relating to a series of
capital securities and common securities occurs and is continuing and we elect not to redeem the
junior subordinated debt securities or to dissolve the Trust and cause the junior subordinated debt
securities to be distributed to holders of the capital securities and common securities as
described above, those capital securities and common securities will remain outstanding and
Additional Sums may be payable on the junior subordinated debt securities.
Like Amount means:
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for a redemption of any series of capital securities and common securities, capital
securities and common securities of the series having a Liquidation Amount equal to that
portion of the principal amount of junior subordinated debt securities to be
contemporaneously redeemed. The Like Amount will be allocated to the common securities
and to the capital securities based upon their relative Liquidation Amounts. The proceeds
will be used to pay the redemption price of the capital securities and common securities;
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for a distribution of junior subordinated debt securities to holders of any series
of capital securities and common securities, junior subordinated debt securities having a
principal amount equal to the Liquidation Amount of the related capital securities and
common securities. |
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Liquidation Amount means, unless otherwise provided in the applicable prospectus supplement,
$1,000 per capital security and common security.
Distribution of Junior Subordinated Debt Securities. We may at any time dissolve the Trust
and, after satisfaction of the liabilities of creditors of the Trust as provided by applicable law,
cause the junior subordinated debt securities relating to the capital securities and common
securities issued by the Trust to be distributed to you and the holders of the common securities in
liquidation of the Trust.
Once the liquidation date is fixed for any distribution of junior subordinated debt securities
for any series of capital securities:
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the series of capital securities will no longer be deemed to be outstanding; |
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DTC, or its nominee, as the record holder of the series of capital securities, will
receive a registered global certificate or certificates representing the junior
subordinated debt securities to be delivered upon the distribution; and |
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certificates representing the series of capital securities not held by DTC or its
nominee will be deemed to represent the junior subordinated debt securities. Those
certificates will bear accrued and unpaid interest in an amount equal to the accrued and
unpaid distributions on the series of capital securities until the certificates are
presented to the administrative trustees of the applicable trust or their agent for
transfer or reissuance. |
We cannot assure you of the market prices for the capital securities or the junior
subordinated debt securities. Accordingly, the capital securities that you may purchase, or the
junior subordinated debt securities that you may receive on dissolution and liquidation of the
Trust, may trade at a discount of the price that you paid for the capital securities.
Conversion or Exchange. The prospectus supplement will describe the following terms of the
capital securities: the terms on which the holders of the capital securities may convert or
exchange these securities into or for common or preferred stock or other securities of ours, into
or for common or preferred stock or other securities of an entity affiliated with us or debt or
equity or other securities of an entity not affiliated with us, or for the cash value of our stock
or any of the above securities; the terms on which conversion or exchange may occur, including
whether conversion or exchange is mandatory, at the option of the holder or at our option; the
period during which conversion or exchange may occur; the initial conversion or exchange price or
rate; and the circumstances or manner in which the amount of common or preferred stock or other
securities issuable upon conversion or exchange may be adjusted.
Redemption Procedures
Capital securities redeemed on a date of redemption shall be:
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redeemed at the redemption price with the applicable proceeds from the
contemporaneous redemption of the junior subordinated debt securities; and |
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payable on each date of redemption only to the extent that the Trust has funds on
hand available for the payment of the redemption price. |
If notice of redemption is given, then on the date of redemption, to the extent funds are
available, the property trustee will deposit irrevocably with DTC funds sufficient to pay the
applicable redemption price and will give DTC irrevocable instructions and authority to pay the
redemption price to you. See Description of Global Securities. If the capital securities are no
longer in book-entry form, the property trustee, to the extent funds are available, will
irrevocably deposit with the paying agent for the capital securities, funds sufficient to pay the
applicable redemption price and will give the paying agent irrevocable instructions and authority
to pay the redemption price to you when you surrender your certificates evidencing the capital
securities.
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Distributions payable on or before the date of redemption for any capital securities called
for redemption shall be payable to the holders on the relevant record dates for the related
distribution dates.
If notice of redemption is given and funds deposited as required, all of your rights will
cease, except your right to receive the redemption price, and the capital securities will cease to
be outstanding.
If a date of redemption is not a business day, then payment of the redemption price payable on
the date of redemption will be made on the next succeeding day which is a business day (and without
any interest or other payment for any delay). However, if the business day falls in the next
calendar year, then payment will be made on the immediately preceding business day.
If payment of the redemption price of the capital securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by us under the guarantee, then
distributions on the capital securities will continue to accrue at the then applicable rate from
the date of redemption to the date that the redemption price is actually paid. In this case the
actual payment date will be the date of redemption for purposes of calculating the redemption
price.
Subject to applicable law (including, without limitation, federal securities law), our
subsidiaries or us may at any time and from time to time purchase outstanding capital securities by
tender offer, in the open market or by private agreement.
Payment of the redemption price on the capital securities and any distribution of the junior
subordinated debt securities to holders of capital securities shall be payable to the holders on
the relevant record date as they appear on the register of capital securities. The record date
shall be one business day before the relevant date of redemption or liquidation date as applicable.
However, if the capital securities are not in book-entry form, the relevant record date for the
capital securities shall be at least 15 days before the date of redemption or liquidation date.
If less than all of the capital securities and common securities issued by the Trust are to be
redeemed on a redemption date, then the aggregate Liquidation Amount of the capital securities and
common securities to be redeemed shall be allocated pro rata to the capital securities and the
common securities based upon the relative Liquidation Amounts of such classes. The property trustee
will select the capital securities to be redeemed on a pro rata basis not more than 60 days before
the date of redemption, by a method deemed fair and appropriate by it. The property trustee will
promptly notify the registrar in writing of the capital securities selected for redemption and, in
the case of any capital securities selected for partial redemption, the Liquidation Amount to be
redeemed.
You will receive notice of any redemption at least 30 days but not more than 60 days before
the date of redemption at your registered address. Unless we default in the payment of the
redemption price on the junior subordinated debt securities, on and after the date of redemption,
interest will cease to accrue on the junior subordinated debt securities or portions of the junior
subordinated debt securities (and distributions will cease to accrue on the related capital
securities or portions of the capital securities) called for redemption.
Subordination of Common Securities
Payment of distributions on, and the redemption price of, the Trusts capital securities and
common securities, will be made pro rata based on the Liquidation Amount of the capital securities
and common securities. However, if an event of default under the indenture shall have occurred and
is continuing, no payment may be made on any of the Trusts common securities, unless all unpaid
amounts on each of the Trusts outstanding capital securities shall have been made or provided for
in full.
If an event of default under the indenture has occurred and is continuing, we, as holder of
the Trusts common securities, will be deemed to have waived any right to act on the event of
default under the applicable trust agreement until the effect of all events of default relating to
the capital securities have been cured, waived or otherwise eliminated. Until the events of default
under the applicable trust agreement relating to the capital securities have been so cured, waived
or otherwise eliminated, the property trustee will act solely on your behalf and
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not on our behalf as holder of the Trusts common securities, and only you and the other
holders of capital securities will have the right to direct the property trustee to act on your
behalf.
Liquidation Distribution Upon Dissolution
The trust agreement states that the trust shall be automatically dissolved upon the expiration
of the term of the Trust and shall also be dissolved upon the first to occur of:
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our bankruptcy, dissolution or liquidation; |
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our decision to dissolve the Trust and to cause the distribution of a Like Amount
of the junior subordinated debt securities directly to the holders of the capital
securities and common securities. For this distribution, we must, if required, receive
the prior approval of the Federal Reserve Board and an |
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opinion of independent counsel that the distribution of the junior debt securities
will not be taxable to the holders; |
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the redemption of all of the capital securities and common securities of the Trust;
and |
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a court order for the dissolution of the Trust is entered. |
If dissolution of the Trust occurs as described in the first, second and fourth bullets above,
the trustee shall liquidate the Trust as quickly as possible. After paying all amounts owed to
creditors, the trustee will distribute to the holders of the capital securities and the common
securities either:
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a Like Amount of junior subordinated debt securities; or |
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if the distribution of the junior subordinated debt securities is determined by the
property trustee not to be practical, cash assets equal to the aggregate Liquidation
Amount per capital security and common security specified in an accompanying prospectus
supplement, plus accumulated and unpaid distributions from that date to the date of
payment. |
If the Trust cannot pay the full amount due on its capital securities and common securities
because insufficient assets are available for payment, then the amounts payable by the Trust on its
capital securities and common securities shall be paid pro rata. However, if an event of default
under the indenture has occurred and is continuing, the total amounts due on the capital securities
shall be paid before any distribution on the common securities.
Trust Enforcement Event
An event of default under the indenture constitutes an event of default under the trust
agreement. We refer to such an event as a Trust Enforcement Event. For more information on events
of default under the indenture, see Description of the Junior Subordinated Debt SecuritiesEvents
of Default. Upon the occurrence and continuance of a Trust Enforcement Event, the property
trustee, as the sole holder of the junior subordinated debt securities, will have the right under
the indenture to declare the principal amount of the junior subordinated debt securities due and
payable.
The amended and restated trust agreement may provide for other events of default as may be
specified in the agreement.
If the property trustee fails to enforce its rights under the junior subordinated debt
securities, any holder of capital securities may, to the extent permitted by applicable law,
institute a legal proceeding against us to enforce the property trustees rights under the junior
subordinated debt securities and the indenture without first instituting legal proceedings against
the property trustee or any other person. In addition, if a Trust Enforcement Event is due to our
failure to pay interest or principal on the junior subordinated debt securities when due, then the
registered holder of capital securities may institute a direct action on or after the due date
directly against us for enforcement of payment
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to that holder of the principal of or interest on the junior subordinated debt securities
having a principal amount equal to the total Liquidation Amount of that holders capital
securities. In connection with such a direct action, we will have the right under the indenture to
set off any payment made to that holder by us. The holders of capital securities will not be able
to exercise directly any other remedy available to the holders of the junior subordinated debt
securities.
Pursuant to the trust agreement, the holder of the common securities will be deemed to have
waived any Trust Enforcement Event regarding the common securities until all Trust Enforcement
Events regarding the capital securities have been cured, waived or otherwise eliminated. Until all
Trust Enforcement Events regarding the capital securities have been so cured, waived or otherwise
eliminated, the property trustee will act solely on behalf of the holders of the capital securities
and only the holders of the capital securities will have the right to direct the enforcement
actions of the property trustee.
Removal of Trustees
Unless an event of default under the trust agreement has occurred and is continuing, we can
remove and replace the trustee at any time. If an event of default under the trust agreement has
occurred and is continuing, the property trustee and the Delaware trustee may be removed or
replaced by the holders of at least a majority in Liquidation Amount of the outstanding capital
securities. Only we have the right to remove or replace the administrative trustees. No resignation
or removal of any of the trustees and no appointment of a successor trustee shall be effective
until the acceptance of appointment by the successor trustee as described in the trust agreement.
Co-Trustees and Separate Property Trustee
Unless an event of default under a trust agreement has occurred and is continuing, we, as the
holder of the common securities, and the administrative trustees shall have the power:
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to appoint one or more persons approved by the property trustee either to act as
co-trustee, jointly with the property trustee, of all or any part of the trust property,
or to act as a separate trustee of any trust property, in either case with the powers as
provided in the instrument of appointment; and |
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to vest in the person(s) any property, title, right or power deemed necessary or
desirable, subject to the provisions of the applicable trust agreement. |
If an event of default under a trust agreement has occurred and is continuing, only the
property trustee may appoint a co-trustee or separate property trustee.
Merger or Consolidation of Trustees
If any of the trustees merge, convert, or consolidate with or into another entity or sells its
trust operations to another entity, the new entity shall be the successor of the trustee under the
trust agreement, provided that the corporation or other entity shall be qualified and eligible to
be a trustee.
Mergers, Consolidations, Amalgamations or Replacements of the Trust
The Trust may not merge with or into, consolidate, amalgamate, or be replaced by or transfer
or lease all or substantially all of its properties and assets to any other entity (a merger
event), except as described below or as described in -Liquidation Distribution Upon Dissolution
above. The Trust may, at our request, with the consent of the administrative trustees and without
your consent, merge with or into, consolidate, amalgamate or be replaced by another trust provided
that:
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the successor entity either: |
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expressly assumes all of the obligations of the Trust; or |
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substitutes for the capital securities other securities with terms
substantially similar to the capital securities (successor securities) so long as the
successor securities have the same rank as the capital securities for distributions
and payments upon liquidation, redemption and otherwise; |
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we expressly appoint a trustee of the successor entity who has the same powers and
duties as the property trustee of the trust as it relates to the junior subordinated debt
securities; |
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the successor securities are listed or will be listed on the same national
securities exchange or other organization that the capital securities are listed on; |
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the merger event does not cause the capital securities or successor securities to
be downgraded by any national statistical rating organization; |
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the merger event does not adversely affect the rights, preferences and privileges
of the holders of the capital securities or successor securities in any material way; |
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the successor entity has a purpose substantially similar to that of the Trust; and |
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before the merger event, we have received an opinion of counsel stating that: |
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the merger event does not adversely affect the rights of the holders of the
capital securities or any successor securities in any material way; |
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following the merger event, neither the Trust nor the successor entity will
be required to register as an investment company under the Investment Company Act;
and |
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we own all of the common securities of the successor entity and guarantee
the successor entitys obligations under the successor securities in the same manner
provided by the related guarantee. |
The Trust and any successor entity must always be classified as grantor trusts for U.S.
federal income tax purposes unless all of the holders of the capital securities approve otherwise.
Voting Rights; Amendment of the Trust Agreement
You have no voting rights except as discussed under Mergers, Consolidations, Amalgamations
or Replacements of the Trust and Description of the GuaranteeAmendments and Assignment, and as
otherwise required by law and the trust agreement. The property trustee, the administrative
trustees and we may amend the trust agreement without your consent:
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to fix any ambiguity or inconsistency; or |
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to modify, eliminate or add provisions to the trust agreement as shall be necessary
to ensure that the Trust shall at all times be classified as a grantor trust for U.S.
federal income tax purposes. |
The administrative trustees and we may amend the trust agreement for any other reason as long
as the holders of at least a majority in aggregate Liquidation Amount of the capital securities
agree, and the trustees receive an opinion of counsel which states that the amendment will not
affect the Trusts status as a grantor trust for U.S. federal income tax purposes, or its exemption
from regulation as an investment company under the Investment Company Act, except to:
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change the amount and/or timing or otherwise adversely affect the method of payment
of any distribution or Liquidation Amount on the capital securities or common securities; |
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restrict your right or the right of the common security holder to institute suit
for enforcement of any distribution or Liquidation Amount on the capital securities or
common securities. |
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The changes described in the two bullet points above require the approval of each holder of
the capital securities affected.
So long as the junior subordinated debt securities of the Trust are held by the property
trustee of the Trust, the trustees shall not, without obtaining the prior approval of the holders
of at least a majority in the aggregate Liquidation Amount of all outstanding related capital
securities:
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direct the time, method and place of conducting any proceeding for any remedy
available to the trustee or executing any trust or power conferred on the trustee
relating to the junior subordinated debt securities; |
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waive any past default as provided in the indenture; |
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cancel an acceleration of the principal of the junior subordinated debt securities;
or |
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agree to any change in the indenture or the junior subordinated debt securities. |
However, if the indenture requires the consent of each holder of junior subordinated debt
securities that are affected, then the property trustee must get approval of all holders of capital
securities.
The trustees cannot change anything previously approved by you without your approval to make
the change. The property trustee shall notify you of any notice of default relating to the junior
subordinated debt securities.
In addition, before taking any of the actions described above, the trustees must obtain an
opinion of counsel experienced in these matters, stating that the trust will continue to be
classified as a grantor trust for U.S. federal income tax purposes.
As described in each trust agreement, the property trustee may hold a meeting so that you may
vote on a change or request that you approve the change by written consent.
Your vote or consent is not required for the Trust to redeem and cancel its capital securities
under the trust agreement.
If your vote is taken or a consent is obtained, any capital securities that are owned by us,
the trustees or any affiliate of either of us shall, for purposes of the vote or consent, be
treated as if they were not outstanding.
Global Capital Securities
The capital securities may be issued in whole or in part in the form of one or more global
securities that will be deposited with, or on behalf of, a depositary identified in the prospectus
supplement.
The specific terms of the depositary arrangements for the capital securities will be described
in the prospectus supplement. See Description of Global Securities.
Payment and Paying Agents
Payments regarding the capital securities shall be made to a depositary, which shall credit
the relevant accounts at the depositary on the applicable distribution dates or, if any trusts
capital securities are not held by a depositary, the payments shall be made by check mailed to the
address of the holder entitled to it at the address listed in the register.
Unless otherwise specified in the prospectus supplement, the paying agent shall initially be
the property trustee. The paying agent shall be permitted to resign as paying agent with 30 days
written notice to the property trustee and to us. If the property trustee shall no longer be the
paying agent, the administrative trustees shall appoint a successor (which shall be a bank or trust
company acceptable to the administrative trustees and to us) to act as paying agent.
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Registrar and Transfer Agent
Unless otherwise specified in the prospectus supplement, the property trustee will act as
registrar and transfer agent for the capital securities.
Registration of transfers of capital securities will be effected without charge by or on
behalf of each trust, after payment of any tax or other governmental charges that are imposed in
connection with any transfer or exchange. No transfers of capital securities called for redemption
will be registered.
Information about the Property Trustee
The property trustee will perform only those duties that are specifically stated in the trust
agreement. If an event of default arises or certain defaults occur and continue under a trust
agreement, the property trustee must use the same degree of care and skill in the exercise of its
duties as a prudent person would exercise or use in the conduct of his or her own affairs. The
property trustee is under no obligation to exercise any of the powers given it by the trust
agreement at your request unless it is offered reasonable security or indemnity against the costs,
expenses and liabilities that it might incur.
If no event of default under the trust agreement has occurred and is continuing, and the
property trustee is required to decide between alternative courses of action, construe ambiguous
provisions in the trust agreement or is unsure of the application of any provisions of the trust
agreement, and the matter is not one on which you are entitled to vote, then the property trustee
shall:
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take some action as directed by us; and |
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if not so directed, take whatever action the property trustee deems advisable and
in your best interests, and in the best interests of the holders of the capital
securities and common securities of the applicable trust and will have no liability
except for its own bad faith, negligence or willful misconduct. |
Miscellaneous
The administrative trustees are authorized and directed to conduct the affairs of and to
operate the Trust in the manner that:
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the Trust will not be deemed to be an investment company required to be registered
under the Investment Company Act or to fail to be classified as a grantor trust for U.S.
federal income tax purposes; |
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the corresponding junior subordinated debt securities will be treated as our
indebtedness for U.S. federal income tax purposes. |
In this connection, the administrative trustees and we are authorized to take any action,
consistent with applicable law or the certificate of trust of the Trust or the trust agreement,
that we each determine in our discretion to be necessary or desirable for these purposes.
You have no preemptive or similar rights. The Trust may not borrow money, issue Debt or
mortgages, or pledge any of its assets.
Description of Junior Subordinated Debt Securities
This section describes the general terms and provisions of the junior subordinated debt
securities that will be purchased by the Trust in connection with the sale of capital securities.
The applicable prospectus supplement will describe the specific terms of the series of junior
subordinated debt securities offered under that prospectus supplement and any general terms
outlined in this section that will not apply to those junior subordinated debt securities.
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The junior subordinated debt securities will be issued under the form of an indenture between
us and an unaffiliated bank as trustee. The indenture will be qualified under the Trust Indenture
Act. The form of junior subordinated indenture will be filed as an exhibit to the registration
statement relating to this prospectus, including the form of junior subordinated debt security.
This section summarizes the material terms and provisions of the junior subordinated indenture
and the junior subordinated debt securities. Because this is a summary, it does not contain all of
the details found in the full text of the junior subordinated indenture and the junior subordinated
debt securities. If you would like additional information, you should read the form of junior
subordinated indenture and the form of junior subordinated debt securities filed with the SEC.
General
Unless otherwise described in the applicable prospectus supplement, the junior subordinated
debt securities will rank equally with all other series of junior subordinated debt securities,
will be unsecured and will be subordinate and junior in priority of payment to all of our Senior
Debt as described below under Subordination.
The indenture does not limit the amount of junior subordinated debt securities which we may
issue, nor does it limit our issuance of any other secured or unsecured Debt. Because we are a
holding company, our rights and the rights of our creditors, including the holder of the junior
subordinated debentures, to participate in the assets of any of our subsidiaries upon the
subsidiarys liquidation or reorganization will be subject to the prior claims of the subsidiarys
creditors except to the extent that we may ourselves be a creditor with recognized claims against
the subsidiary.
We can issue the junior subordinated debt securities under a supplemental indenture, an
officers certificate or a resolution of our board of directors.
The applicable prospectus supplement will describe the following terms of the junior
subordinated debt securities:
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the title; |
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any limit on the aggregate principal amount that may be issued; |
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the date(s) on which the principal is payable or the method of determining that
date; |
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the interest rate, if any, the interest payment dates, any rights we may have to
defer or extend an interest payment date, and the regular record date for any interest
payment or the method by which any of the foregoing will be determined; |
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the place(s) where payments shall be payable and where the junior subordinated debt
securities can be presented for registration of transfer or exchange, and the place(s)
where notices and demands to or on us can be made; |
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any period(s) within which or date(s) on which, price(s) at which and the terms and
conditions on which the junior subordinated debt securities can be redeemed, in whole or
in part, at our option or at the option of a holder of the junior subordinated debt
securities; |
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our or any holders obligation or right, if any, to redeem, purchase or repay the
junior subordinated debt securities and other related terms and provisions; |
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the minimum denominations in which any junior subordinated debt securities will be
issued; |
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if other than in U.S. dollars, the currency in which the principal, premium and
interest, if any, that the junior subordinated debt securities will be payable or
denominated; |
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any provisions that restrict us, directly or indirectly, from redeeming or
purchasing any of our outstanding securities, making any payments of principal, interest
or dividends thereon, or making any payments pursuant to any guarantee of any securities
issued by a subsidiary; |
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the circumstances constituting events of default or covenants, and any additions,
modifications or deletions in the events of default or covenants specified in the
indenture; |
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the portion of the principal amount that will be payable at declaration of
acceleration of the maturity; |
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any additions or changes to the indenture as will be necessary to facilitate the
issuance of a series of junior subordinated debt securities in bearer form, registrable
or not registrable for the principal, and with or without interest coupons; |
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the index or indices used to determine the amount of payments of interest,
principal, and premium (if any), on any junior subordinated debt securities and how these
amounts will be determined; |
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the terms and conditions under which temporary global securities are exchanged for
definitive junior subordinated debt securities of the same series; |
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whether the junior subordinated debt securities will be issued in global form and,
in that case, the terms and the depositary for these global securities; |
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the paying agent; |
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the terms on which holders of the debt securities may convert or exchange these
securities into or for common or preferred stock or other securities of ours, into or for
common or preferred stock or other securities of an entity affiliated with us or debt or
equity or other securities of an entity not affiliated with us, or for the cash value of
our stock or any of the above securities, the terms on which conversion or exchange may
occur, including whether conversion or exchange is mandatory, at the option of the holder
or at our option, the period during which conversion or exchange may occur, the initial
conversion or exchange price or rate and the circumstances or manner in which the amount
of common or preferred stock or other securities issuable upon conversion or exchange may
be adjusted; |
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the form of trust agreement and guarantee agreement; |
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the relative degree, if any, to which the junior subordinated debt securities shall
be senior or subordinated to other junior subordinated debt securities or any of our
other indebtedness in right of payment; and |
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any other terms of the junior subordinated debt securities consistent with the
provisions of the indenture. |
Junior subordinated debt securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at the time of issuance is below
market rates. Material U.S. federal income tax consequences and special considerations applicable
to the junior subordinated debt securities will be described in the applicable prospectus
supplement.
The applicable prospectus supplement will describe the restrictions, elections, material U.S.
federal income tax consequences, and specific terms and other information related to the junior
subordinated debt securities if the purchase price, principal, premium, or interest of any of the
junior subordinated debt securities is payable or denominated in one or more foreign currencies or
currency units.
If any index is used to determine the amount of payments of interest on any series of junior
subordinated debt securities, special U.S. federal income tax, accounting and other considerations
applicable to the junior subordinated debt securities will be described in the applicable
prospectus supplement.
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Option to Extend Interest Payment Dates
To the extent specified in the applicable prospectus supplement and if the junior subordinated
debt securities are not in default, we shall have the right at any time and from time to time
during the term of any series of junior subordinated debt securities to defer payment of interest
for up to five consecutive years or such longer period as specified in the applicable prospectus
supplement (an extension period, which we also sometimes refer to as a deferral period). No
deferral period will extend past the maturity date of the junior subordinated debt securities.
During any such extension period, we will not declare or pay any dividend on, make any
distributions relating to, or redeem, purchase, acquire or make a liquidation payment relating to,
any of our capital stock or make any guarantee payment with respect thereto other than:
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repurchases, redemptions or other acquisitions of shares of our capital stock in
connection with any employment contract, benefit plan or other similar arrangement with
or for the benefit of employees, officers, directors or consultants; |
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repurchases of our shares of common stock pursuant to a contractually binding
requirement to buy stock existing prior to the commencement of the extension period,
including under a contractually binding stock repurchase plan; |
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as a result of an exchange or conversion of any class or series of our capital
stock for any other class or series of our capital stock; |
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the purchase of fractional interests in shares of our capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being converted
or exchanged; |
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purchase of our capital stock in connection with the distribution thereof; |
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any declaration of a dividend in connection with any rights plan, or the issuance
of rights, stock or other property under any rights plan, or the redemption or repurchase
of rights pursuant thereto; or |
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any dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or other
rights is the same stock as that on which the dividend is being paid or ranks equally
with or junior to such stock. |
Except as described in any prospectus supplement, we will not make any payment of interest,
principal or premium on, or repay, repurchase or redeem, any debt securities or guarantees issued
by us that rank equally with or junior to the junior subordinated debt securities.
The foregoing, however, will not apply to any stock dividends paid by us where the dividend
stock is the same stock as that on which the dividend is being paid. We may pay current interest at
any time with cash from any source.
Some U.S. federal income tax consequences and considerations applicable to any junior
subordinated debt securities that permit extension periods will be described in the applicable
prospectus supplement.
Redemption
Except as otherwise indicated in the applicable prospectus supplement, junior subordinated
debt securities will not be subject to any sinking fund.
Unless the applicable prospectus supplement indicates otherwise, we may, at our option and
subject to the receipt of prior approval by the Federal Reserve Board, if then required under
applicable capital guidelines or policies, redeem the junior subordinated debt securities of any
series:
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in whole at any time or in part from time to time; or |
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upon the occurrence of a Tax Event, an Investment Company Event or a Regulatory
Capital Event, as each is defined below, in whole (but not in part) at any time within 90
days of the occurrence of the Tax Event, the Investment Company Event or Regulatory
Capital Event. |
If the junior subordinated debt securities of any series are redeemable only on or after a
specified date or by the satisfaction of additional conditions, the applicable prospectus
supplement will specify the date or describe these conditions.
Junior subordinated debt securities shall be redeemable in the denominations specified in the
prospectus supplement. Unless the prospectus supplement indicates otherwise, junior subordinated
debt securities will be redeemed at the redemption price.
A Tax Event means that either we or the Trust will have received an opinion of counsel (which
may be our counsel or counsel of an affiliate but not an employee and which must be reasonably
acceptable to the property trustee) experienced in tax matters stating that, as a result of any:
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amendment to, or change (including any announced prospective change) in, the laws
(or any regulations under those laws) of the United States or any political subdivision
or taxing authority affecting taxation; or |
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interpretation or application of the laws enumerated in the preceding bullet point
or regulations, by any court, governmental agency or regulatory authority; |
there is more than an insubstantial risk that:
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the Trust is, or will be within 90 days of the date of the opinion of counsel,
subject to U.S. federal income tax on interest received on the junior subordinated debt
securities; |
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interest payable by us to the Trust on the junior subordinated debt securities is
not, or will not be within 90 days of the date of the opinion of counsel, deductible, in
whole or in part, for U.S. federal income tax purposes; or |
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the Trust is, or will be within 90 days of the date of the opinion of counsel,
subject to more than a minimal amount of other taxes, duties, assessments or other
governmental charges. |
An Investment Company Event means the receipt by us and the Trust of an opinion of counsel
experienced in matters relating to investment companies to the effect that, as a result of any:
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change (including any announced prospective change) in law or regulation; or |
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change (including any announced prospective change) in interpretation or
application of law or regulation by any legislative body, court, governmental agency or
regulatory authority, |
the Trust is or will be considered an investment company that is required to be registered under
the Investment Company Act, which change becomes effective on or after the original issuance of the
capital securities.
A Regulatory Capital Event means the reasonable determination by us that, as a result of any:
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amendment to, or change (including any prospective change) in, laws or any
applicable regulation of the United States and any political subdivision; or |
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as a result of any official or administrative pronouncement or action or judicial
decision interpreting or applying the laws or regulations, which amendment is effective
or announced on or after the date of issuance of the capital securities, |
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there is more than an insubstantial risk of impairment of our ability to treat the capital
securities (or any substantial portion) as Tier 1 capital (or its equivalent) for purposes of the
capital adequacy guidelines of the Federal Reserve Board, in effect and applicable to us.
Notice of any redemption will be mailed at least 30 days and not more than 60 days before the
redemption date to each holder of redeemable junior subordinated debt securities, at its registered
address. Unless we default in the payment of the redemption price, on or after the redemption date,
interest will cease to accrue on the junior subordinated debt securities or portions called for
redemption.
Restrictions on Some Payments
Each prospectus supplement will describe any restrictions imposed by the junior subordinated
debentures or the capital securities on payments by us or our subsidiaries, including dividends and
distributions on, or redemptions and acquisitions of, our securities.
However, at any time, including during an extension period, we will be permitted to:
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pay dividends or distributions in additional shares of capital stock; |
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make payments under the guarantee of the series of the capital securities and the
common securities; |
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declare or pay a dividend in connection with the implementation of a shareholders
rights plan, or issue stock under such a plan or repurchase such rights; and |
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purchase common stock for issuance pursuant to any employee benefit plans. |
Modification of Indenture
We may and the trustee may change the indenture without your consent for specified purposes,
including:
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to evidence the succession of another person to us; |
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to convey, transfer, assign, mortgage or pledge any property to or with the
debenture trustee or surrender any right or power conferred upon us in the junior
subordinated indenture; |
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to add to our covenants for the benefit of other holders of all or any series of
securities; |
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to add any additional events of default for the benefit of other holders of all or
any series of securities; |
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to change or eliminate any of the provisions of the junior subordinated indenture,
provided that any such change or elimination shall not apply to any outstanding
securities, or shall become effective only when there is no security outstanding of any
series created prior to the execution of the supplemental indenture that is entitled to
the benefit of such provision; |
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to fix any ambiguity, defect or inconsistency, provided that the change does not
materially adversely affect the interest of any holder of any series of junior
subordinated debt securities or, in the case of corresponding junior subordinated debt
securities, the interest of a holder of any related capital securities so long as they
remain outstanding; and |
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to qualify or maintain the qualification of the indenture under the Trust Indenture
Act. |
In addition, under the indenture, we and the trustee may modify the indenture to affect the
rights of the holders of the series of the junior subordinated debt securities, with the consent of
the holders of a majority in principal amount of the outstanding junior subordinated debt
securities that are affected. However, neither we nor the trustee may take the following actions
without the consent of each holder of the outstanding junior subordinated debt securities affected:
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change the maturity date of the junior subordinated debt securities (except as
otherwise specified in the applicable prospectus supplement), or reduce the principal
amount, rate of interest, or extend the time of payment of interest; |
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reduce the percentage in principal amount of junior subordinated debt securities
necessary to modify the indenture; |
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modify some provisions of the indenture relating to modification or waiver, except
to increase the required percentage; or |
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modify the provisions of the indenture relating to the subordination of the junior
subordinated debt securities in a manner adverse to the holders. |
As long as any of the capital securities are outstanding, no modification will be made to the
junior subordinated debt securities that adversely affects the holders of these capital securities
in any material respect. Also the indenture cannot be terminated, and a waiver of any event of
default or compliance with any covenant under the indenture cannot be effective, without the prior
consent of the holders of a majority of the liquidation preference of the related capital
securities unless and until the principal of the junior subordinated debt securities and all
accrued and unpaid interest have been paid in full and some other conditions are satisfied.
Events of Default
Unless otherwise specified in the prospectus supplement, the following are events of default
as to any particular series of junior subordinated debt securities under the indenture:
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default in the payment of the principal of or premium, if any, on the junior
subordinated debt securities; |
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the default in the payment of interest on the junior subordinated debt securities
in full for a period of 30 days after the conclusion of a period consisting of up to five
consecutive years, or such longer period as specified in the applicable prospectus
supplement, commencing with the earliest quarter for which interest (including deferred
payments) has not been paid in full; |
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the Trust shall have voluntarily or involuntarily dissolved, wound-up its business
or otherwise terminated its existence, except in connection with (i) the distribution of
the junior subordinated debt securities to holders of the capital securities, (ii) the
redemption of all of the related outstanding capital securities or (iii) certain mergers,
consolidations or amalgamations; |
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certain events in bankruptcy, insolvency or reorganization regarding us or our
banking subsidiaries; or |
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any other event of default that may be specified for the junior subordinated debt
securities when created. |
The holders of a majority in aggregate outstanding principal amount of the junior subordinated
debt securities have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee. If an event of default (other than certain events of
bankruptcy) under the indenture of any series occurs and is continuing, the junior subordinated
trustee or the holders of at least 25% in aggregate principal amount of the outstanding junior
subordinated debt securities can declare the unpaid principal and accrued interest, if any, to the
date of acceleration on all the outstanding junior subordinated debt securities to be due and
payable immediately. Similarly, if the trustee or holders of the corresponding junior subordinated
debt securities fail to make this declaration, the holders of at least 25% in aggregate liquidation
preference of the related capital securities will have that right.
If an event of default consisting of certain events of bankruptcy occurs under the indenture,
the principal amount of all the outstanding junior subordinated debt securities will automatically,
and without any declaration or other action on the part of the trustee or any holder, become
immediately due and payable.
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The holders of a majority in aggregate outstanding principal amount of the junior subordinated
debt securities can rescind a declaration of acceleration and waive the default if the default
(other than the non-payment of principal which has become due solely by acceleration) has been
cured and a sum sufficient to pay all principal and interest due (other than by acceleration) has
been deposited with the trustee. If the holders of the corresponding junior subordinated debt
securities fail to rescind a declaration and waive the default, the holders of a majority in
aggregate Liquidation Amount of the related capital securities will have that right.
The holders of a majority in aggregate outstanding principal amount of the junior subordinated
debt securities may, on behalf of holders of all of the junior subordinated debt securities, waive
any past default, except:
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a default in the payment of principal or interest (unless the default has been
cured or a sum sufficient to pay all matured installments of principal and interest has
been deposited with the trustee); or |
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a default in a covenant or provision of the indenture which cannot be modified or
amended without the consent of the holders of each outstanding junior subordinated debt
securities. |
If the holders of the corresponding junior subordinated debt securities fail to rescind a
declaration and waive the default, the holders of a majority in liquidation preference of the
related capital securities will have that right.
We are required to file annually, with the trustee, a certificate stating whether or not we
are in compliance with all the conditions and covenants applicable to us under the junior
subordinated indenture.
If an event of default occurs and is continuing on the junior subordinated debt securities,
the property trustee will have the right to declare the principal of, and the interest on, the
corresponding junior subordinated debt securities, and any amounts payable under the indenture, to
be immediately due and payable, and to enforce its other rights as a creditor for these
corresponding junior subordinated debt securities.
Enforcement of Some Rights by Holders of Capital Securities
If an event of default under the indenture has occurred and is continuing, and this event can
be attributable to our failure to pay interest or principal on the related junior subordinated debt
securities when due, you may institute a legal proceeding directly against us to enforce the
payment of the principal of or interest on those subordinated debt securities having a principal
amount equal to the Liquidation Amount of your related capital securities. We cannot amend the
indenture to remove the right to bring a direct action, without the written consent of holders of
all capital securities. If the right to bring a direct action is removed, the applicable Trust may
become subject to reporting obligations under the Exchange Act.
You would not be able to exercise directly any remedy other than those stated in the preceding
paragraph which are available to the holders of the junior subordinated debt securities unless
there has been an event of default under the trust agreement. See Description of Capital
SecuritiesEvents of Default.
Consolidation, Merger, Sale of Assets and Other Transactions
We cannot consolidate with or merge into any other person or convey, transfer or lease our
properties and assets substantially as an entirety to any person, and no person will consolidate
with or merge into us or convey, transfer or lease its properties and assets substantially as an
entirety to us, unless:
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the successor is organized under the laws of the United States or any state or the
District of Columbia, and expressly assumes all of our obligations under the indenture; |
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immediately after the transaction, no event of default, and no event which, after
notice or lapse of time or both, would become an event of default, shall have occurred
and be continuing; |
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this transaction is permitted under the related trust agreement and the related
guarantee and does not give rise to any breach or violation of the related trust
agreement or the related guarantee; and |
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other conditions prescribed in the indenture are met. |
The general provisions of the indenture do not afford protection to the holders of the junior
subordinated debt securities in the event of a highly leveraged or other transaction involving us
that may adversely affect the holders.
Satisfaction and Discharge
The indenture provides that when all junior subordinated debt securities not previously
delivered to the trustee for cancellation:
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have become due and payable; or |
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will become due and payable within one year, and |
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we deposit with the trustee money sufficient to pay and discharge the entire
indebtedness on the junior subordinated debt securities; |
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we deliver to the trustee officers certificates and opinions of counsel; and |
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we comply with certain other requirements under the indenture, |
then the indenture will cease to be of further effect and we will be considered to have satisfied
and discharged the indenture.
Conversion or Exchange
If indicated in the prospectus supplement, the junior subordinated debt securities may be
convertible or exchangeable into other securities, including shares of our common or preferred
stock. The prospectus supplement will describe the specific terms on which holders of the junior
subordinated debt securities may convert or exchange these securities into or for common or
preferred stock or other securities of ours, into or for common or preferred stock or other
securities of an entity affiliated with us or debt or equity or other securities of an entity not
affiliated with us, or for the cash value of our stock or any of the above securities, the terms on
which conversion or exchange may occur, including whether conversion or exchange is mandatory, at
the option of the holder or at our option, the period during which conversion or exchange may
occur, the initial conversion or exchange price or rate and the circumstances or manner in which
the amount of common or preferred stock or other securities issuable upon conversion or exchange
may be adjusted.
Subordination
The indenture will provide that any junior subordinated debt securities will be subordinate
and junior in right of payment to all Senior Debt, as described in any prospectus supplement.
Upon any payment or distribution of assets to creditors upon our liquidation, dissolution,
winding up, reorganization, whether voluntary or involuntary, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt restructuring or similar
proceedings, the holders of Senior Debt will first be entitled to receive payment in full of the
principal, premium, or interest due before the holders of the junior subordinated debt securities
or the property trustee, on behalf of the holders, will be entitled to receive any payment or
distribution.
In the event of the acceleration of the maturity of any junior subordinated debt securities,
the holders of all Senior Debt outstanding at the time of the acceleration will first be entitled
to receive payment in full of all amounts due on the Senior Debt (including any amounts due upon
acceleration) before the holders of junior subordinated debt securities.
No payment, by or on our behalf, of principal, premium, if any, or interest, on the junior
subordinated debt securities shall be made if at the time of the payment, there exists:
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a default in any payment on any Senior Debt, or any other default under which the
maturity of any Senior Debt has been accelerated; and |
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any judicial proceeding relating to the defaults which shall be pending. |
We are a bank holding company separate and distinct from our banking and non-banking
subsidiaries. Most of our operating assets are owned by our subsidiaries. We rely primarily on
dividends from our subsidiaries to meet our obligations to pay the principal of and interest on our
outstanding debt obligations and corporate expenses, and to pay dividends on our common stock. Our
principal sources of income are dividends, interest and fees from our banking and non-banking
subsidiaries. In addition, payment of dividends by our subsidiaries to us are subject to ongoing
review by banking regulators and to various statutory limitations and in some circumstances may
require prior approval by banking regulatory authorities.
Because we are a holding company, our right to participate in any distribution of assets of
any subsidiary upon the liquidation or reorganization or otherwise of our subsidiary is subject to
the prior claims of creditors of the subsidiary, unless we can be recognized as a creditor of that
subsidiary. Accordingly, the junior subordinated debt securities will be effectively subordinated
to all existing and future liabilities of our subsidiaries, including depositors of our depository
institution subsidiaries, and holders of junior subordinated debt securities should look only to
our assets for payments on the junior subordinated debt securities.
The bank is subject to restrictions imposed by federal law on any extensions of credit to, and
some other transactions with, us and our other affiliates, and on investments in stock or other
securities. These restrictions prevent us and our other affiliates from borrowing from the bank
unless the loans are secured by various types of collateral.
The indenture will place no limitation on the amount of Senior Debt, or other debt, that we
may incur. We expect to incur from time to time additional indebtedness, including Senior Debt.
The indenture will provide that these subordination provisions, as they relate to any
particular issue of junior subordinated debt securities, may be changed before the issuance. The
applicable prospectus supplement will describe any of these changes.
Denominations, Registration and Transfer
Unless the prospectus supplement specifies otherwise, we will issue the junior subordinated
debt securities in registered form only, without coupons and in the denominations specified in the
prospectus supplement. Subject to the terms of the indenture and the limitations applicable to
global securities as may be stated in the prospectus supplement, junior subordinated debt
securities will be presented for exchange or for registration of transfer (duly endorsed or with
the form of transfer duly endorsed, or a satisfactory written instrument of transfer, duly
executed) at the office of the security registrar or at the office of any transfer agent designated
by us for that purpose.
Unless otherwise provided in the prospectus supplement, no service charge will be made for any
registration of transfer or exchange, but we may require payment of any taxes or other governmental
charges. We have appointed the trustee as security registrar for the junior subordinated debt
securities. Any transfer agent (in addition to the security registrar) initially designated by us
for any junior subordinated debt securities will be named in the applicable prospectus supplement.
We may at any time designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the location through which any transfer agent acts, except that we
will be required to maintain a transfer agent in each place of payment for the junior subordinated
debt securities of each series.
If the junior subordinated debt securities are to be redeemed, neither the trustee nor us will
be required to:
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issue, register the transfer of, or exchange any junior subordinated debt
securities of any series during a period beginning on the business day that is 15 days
before the day of mailing of notice of redemption of |
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any junior subordinated debt securities that is selected for redemption and ending at the
close of business on the day of mailing of the relevant notice; or |
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transfer or exchange any junior subordinated debt securities selected for
redemption, except, the unredeemed portion of any junior subordinated debt securities
being redeemed in part. |
Global Junior Subordinated Debt Securities
We may issue, in whole or in part, the junior subordinated debt securities in the form of one
or more global junior subordinated debt securities that will be deposited with, or on behalf of, a
depositary identified in the applicable prospectus supplement relating to those series. The
specific terms of the depositary arrangements for a series of junior subordinated debt securities
will be described in the prospectus supplement. See Description of Global Securities.
Payment and Paying Agents
Payment of principal of and any premium and interest on junior subordinated debt securities
will be made at the office of the trustee as specified in the prospectus supplement or at the
office of the paying agent(s) designated by us, from time to time, in the prospectus supplement.
However, we may make interest payments by:
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check mailed to the address of the person entitled to it at the address appearing
in the securities register (except in the case of global junior subordinated debt
securities); or |
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transfer to an account maintained by the person entitled to it as specified in the
securities register, so long as we receive proper transfer instructions by the regular
record date. |
Unless otherwise indicated in the prospectus supplement, payment of the interest on junior
subordinated debt securities on any interest payment date will be made to the person in whose name
the junior subordinated debt securities are registered at the close of business on the regular
record date relating to the interest payment date, except in the case of defaulted interest.
We may at any time designate additional paying agents or cancel the designation of any paying
agent. We will at all times be required to maintain a paying agent in each place of payment for the
junior subordinated debt securities.
Any money deposited with the trustee or any paying agent, or held by us in trust for the
payment of the principal of and any premium or interest on any junior subordinated debt securities
that remains unclaimed for two years after the principal, any premium or interest has become due
and payable will, at our request, be repaid to us and the holder of the junior subordinated debt
securities can then only look to us for payment.
Information about the Trustee
The Trust Indenture Act describes the duties and responsibilities of the trustee. Subject to
the provisions under the Trust Indenture Act, the trustee has no obligation to exercise any of the
powers vested in it by the indenture, at the request of any holder of junior subordinated debt
securities, unless the holder offers reasonable indemnity against the costs, expenses and
liabilities that are incurred. The trustee is not required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its duties if it reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
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Description of the Guarantees
General
We will execute a guarantee, for your benefit at the same time that the Trust issues the
capital securities. An unaffiliated bank will act as the guarantee trustee for the benefit of
holders of the capital securities. The guarantee will be qualified as an indenture under the Trust
Indenture Act. The form of guarantee will be included in the exhibits to the registration
statement.
This section summarizes the material terms and provisions of the guarantee. Because this is
only a summary, it does not contain all of the details found in the full text of the guarantee. If
you would like additional information you should read the form of guarantee agreement.
We will irrevocably guarantee payment in full of amounts due under the capital securities on a
junior subordinated basis and to the extent the issuer capital trust has funds available for
payment of those amounts. We refer to this obligation as the guarantee. However, the guarantee
does not cover payments if the Trust does not have sufficient funds to make the distribution
payments, including, for example, if we have failed to pay to the issuer amounts due under the
junior subordinated debt securities.
The following payments, to the extent not paid by the Trust, will be subject to the guarantee:
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any accumulated and unpaid distributions required to be paid on the capital
securities, to the extent that the Trust has applicable funds available to make the
payment; |
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the redemption price and all accrued and unpaid distributions to the date of
redemption on the capital securities called for redemption, to the extent that the Trust
has funds available to make the payment; or |
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in the event of a voluntary or involuntary dissolution, winding up or liquidation
of the Trust (other than in connection with a distribution of corresponding junior
subordinated debt securities to you or the redemption of all the related capital
securities), the lesser of: |
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the aggregate of the Liquidation Amount specified in the applicable
prospectus supplement for each capital security plus all accrued and unpaid
distributions on the capital securities to the date of payment; and |
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the amount of assets of the Trust remaining available for distribution to
you. |
We can satisfy our obligation to make a guarantee payment by direct payment to you of the
required amounts or by causing the Trust to pay those amounts to the holders.
Each guarantee will be an irrevocable guarantee on a subordinated basis of the Trusts
obligations under the capital securities, but will apply only to the extent that the Trust has
funds sufficient to make the payments, and is not a guarantee of collection.
No single document executed by us that is related to the issuance of the capital securities
will provide for its full, irrevocable and unconditional guarantee of the capital securities. It is
only the combined operation of the applicable guarantee, the trust agreement, the indenture and the
expense agreement that has the effect of providing a full, irrevocable and unconditional guarantee
of the Trusts obligations under its capital securities.
As issuer of the junior subordinated debt securities, we are also obligated to pay the
expenses and other obligations of the issuer, other than its obligations to make payments on the
capital securities.
Status of Guarantees
The guarantee will constitute an unsecured obligation of ours and will rank subordinate and
junior in right of payment to all of our Senior Debt to the same extent as each of the related
junior subordinated debt securities.
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The guarantee will constitute a guarantee of payment and not of collection (in other words you
may sue us, or seek other remedies, to enforce your rights under the guarantee without first suing
any other person or entity). The guarantee will be held for your benefit and will not be discharged
except by payment of the payments in full to the extent not previously paid by the Trust or upon
distribution to you of the corresponding series of junior subordinated debt securities. The
guarantee does not place a limitation on the amount of additional indebtedness that we may incur.
We expect to incur from time to time additional indebtedness, including indebtedness constituting
Senior Debt.
Amendments and Assignment
Except regarding any changes which do not adversely affect your rights in any material respect
(in which case your consent will not be required), the guarantee may only be amended with the prior
approval of the holders of at least a majority in aggregate Liquidation Amount of the outstanding
capital securities. A description of the manner in which approval may be obtained is described
under Description of the Capital SecuritiesVoting Rights; Amendment of the Trust Agreement. All
guarantees and agreements contained in the guarantee will be binding on our successors, assigns,
receivers, trustees and representatives and shall inure to the benefit of the holders of the
related capital securities then outstanding.
An event of default under the guarantee occurs if we fail to make any of our required payments
or perform our obligations under the guarantee. The holders of at least a majority in aggregate
Liquidation Amount of the capital securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the guarantee trustee relating to
the guarantee or to direct the exercise of any trust or power given to the guarantee trustee under
the guarantee.
You may institute a legal proceeding directly against us to enforce your rights under the
guarantee without first instituting a legal proceeding against the Trust, the guarantee trustee or
any other person or entity.
As guarantor, we are required to file annually with the guarantee trustee a certificate
stating whether or not we are in compliance with all the conditions and covenants applicable to us
under the guarantee.
Information about the Guarantee Trustee
The guarantee trustee, other than during the occurrence and continuance of an event of default
by us in the performance of any guarantee, will only perform the duties that are specifically
described in the guarantee. After an event of default on any guarantee, the guarantee trustee will
exercise the same degree of care and skill as a prudent person would exercise or use in the conduct
of his or her own affairs. Subject to this provision, the guarantee trustee is under no obligation
to exercise any of its powers as described in the guarantee at your request unless it is offered
reasonable indemnity against the costs, expenses and liabilities that it might incur.
Termination of Capital Securities Guarantees
The guarantee will terminate once the related capital securities are paid in full or upon
distribution of the corresponding series of junior subordinated debt securities to you. Each
guarantee will continue to be effective or will be reinstated if at any time you are required to
restore payment of any sums paid under the capital securities or the guarantee.
Relationship among the Capital Securities, the Corresponding Junior Subordinated Debt and the
Guarantees
Full and Unconditional Guarantee
Payments of distributions and other amounts due on the capital securities (to the extent the
Trust has funds available for the payments that are received from payments by us on our junior
subordinated debt securities) will be irrevocably guaranteed by us to the extent described under
Description of the Guarantee. No single document executed by us in connection with the issuance
of the capital securities will provide for its full, irrevocable and unconditional guarantee of the
capital securities. It is only the combined operation of our obligations under the guarantee, the
trust agreement, the junior subordinated debt securities and the indenture that has the effect of
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providing a full, irrevocable and unconditional guarantee of the Trusts obligations under the
related series of capital securities.
If we do not make payments on corresponding junior subordinated debt securities, the related
Trust will not pay distributions or other amounts on the related capital securities. The guarantee
does not cover payments of distributions when the related Trust does not have sufficient funds to
pay such distributions. If that occurs, your remedy is to sue us or seek other remedies, to enforce
your rights under the guarantee without first instituting a legal proceeding against the guarantee
trustee.
Sufficiency of Payments
As long as we make payments of interest and other payments when due on the junior subordinated
debt securities, the payments will be sufficient to cover the payment of distributions and other
payments due on the related capital securities, primarily because:
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the aggregate principal amount of each series of corresponding junior subordinated
debt securities will be equal to the sum of the aggregate Liquidation Amount of the
related capital securities and common securities; |
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the interest rate and interest and other payment dates on each series of
corresponding junior subordinated debt securities will match the distribution rate and
distribution and other payment dates for the related capital securities; |
|
|
|
|
we shall pay for any and all costs, expenses and liabilities of operating the Trust
except the Trusts obligations to holders of its capital securities under the capital
securities; and |
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|
|
|
the trust agreement provides that the Trust will not engage in any activity that is
inconsistent with the limited purposes of the Trust. |
We have the right to set-off any payment we are otherwise required to make under the indenture
with and to the extent we have made, or are concurrently on the date of the payment making, a
payment under the related guarantee.
Enforcement Rights of Holders of Capital Securities
You may institute a legal proceeding directly against us to enforce your rights under the
guarantee without first instituting a legal proceeding against the guarantee trustee, the related
Trust or any other person or entity.
A default or event of default under any of our Senior Debt would not constitute a default or
event of default under the trust agreement. However, in the event of payment defaults under, or
acceleration of, any of our Senior Debt, the subordination provisions of the indenture will provide
that no payments will be made regarding the corresponding junior subordinated debt securities until
the Senior Debt has been paid in full or any payment default on it has been cured or waived.
Failure to make required payments on any series of corresponding junior subordinated debt
securities would constitute an event of default under the trust agreement.
Limited Purpose of the Trust
The Trusts capital securities evidence a beneficial interest in the Trust, and the Trust
exists for the sole purpose of issuing its capital securities and common securities and investing
the proceeds in corresponding junior subordinated debt securities. A principal difference between
the rights of a holder of a capital security and a holder of a corresponding junior subordinated
debt security is that a holder of a corresponding junior subordinated debt security is entitled to
receive from us the principal amount of and interest accrued on corresponding junior subordinated
debt securities held, while a holder of capital securities is entitled to receive distributions
from the Trust (or from us under the applicable guarantee) if and to the extent the Trust has funds
available for the payment of distributions.
43
Rights upon Dissolution
In the event of any voluntary or involuntary dissolution of the Trust involving a liquidation
of the corresponding junior subordinated debt securities held by the Trust, you will be entitled to
receive, out of assets held by that Trust, the liquidation distribution in cash. See Description
of the Capital SecuritiesLiquidation Distribution upon Dissolution. In the event of our voluntary
or involuntary liquidation or bankruptcy, the property trustee, as holder of the corresponding
junior subordinated debt securities, would be a subordinated creditor of ours, subordinated in
right of payment to all senior debt, but entitled to receive payment in full of principal, premium,
if any, and interest, before any of our common stockholders receive payments or distributions.
Since we are the guarantor under the guarantee and have agreed to pay for all costs, expenses and
liabilities of the Trust (other than the Trusts obligations to you), your position and the
position of a holder of the corresponding junior subordinated debt securities relative to other
creditors and to our stockholders in the event of our liquidation or bankruptcy are expected to be
substantially the same.
Description of Global Securities
Unless otherwise indicated in the applicable prospectus supplement, securities other than
common stock will be issued in the form of one or more global certificates, or global securities,
registered in the name of a depositary or its nominee. Unless otherwise indicated in the
applicable prospectus supplement, the depositary will be The Depository Trust Company, commonly
referred to as DTC, and the securities will be registered in the name of Cede & Co. No person that
acquires a beneficial interest in those securities will be entitled to receive a certificate
representing that persons interest in the securities except as described herein or in the
applicable prospectus supplement. Unless and until definitive securities are issued under the
limited circumstances described below, all references to actions by holders of securities issued in
global form will refer to actions taken by DTC upon instructions from its participants, and all
references to payments and notices to holders will refer to payments and notices to DTC or Cede &
Co., as the registered holder of these securities.
DTC is a limited-purpose trust company organized under the New York Banking Law, a banking
organization within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a clearing corporation within the meaning of the New York Uniform Commercial Code, and a
clearing agency registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that DTC participants deposit with DTC. DTC also facilitates the settlement among
DTC participants of securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in DTC participants accounts, thereby
eliminating the need for physical movement of certificates. DTC participants include securities
brokers and dealers, banks, trust companies and clearing corporations, and may include other
organizations. DTC is a wholly owned subsidiary of the Depository Trust & Clearing Corporation, or
DTCC. DTCC, in turn, is owned by a number of DTCs participants and subsidiaries of DTCC as well
as by the New York Stock Exchange, Inc., the American Stock Exchange, LLC and the Financial
Industry Regulatory Authority, Inc. Indirect access to the DTC system also is available to others
such as banks, brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. The rules applicable to DTC and
DTC participants are on file with the SEC.
Persons that are not participants or indirect participants but desire to purchase, sell or
otherwise transfer ownership of, or other interests in, securities may do so only through
participants and indirect participants. Under a book-entry format, holders may experience some
delay in their receipt of payments, as such payments will be forwarded by our designated agent to
Cede & Co., as nominee for DTC. DTC will forward such payments to its participants, who will then
forward them to indirect participants or holders. Holders will not be recognized by the relevant
registrar, transfer agent, trustee or warrant agent as registered holders of the securities
entitled to the benefits of our certificate of incorporation or the applicable indenture, warrant
agreement, trust agreement or guarantee. Beneficial owners that are not participants will be
permitted to exercise their rights only indirectly through and according to the procedures of
participants and, if applicable, indirect participants.
Under the rules, regulations and procedures creating and affecting DTC and its operations as
currently in effect, DTC will be required to make book-entry transfers of securities among
participants and to receive and transmit payments to participants. DTC rules require participants
and indirect participants with which beneficial
44
securities owners have accounts to make book-entry transfers and receive and transmit payments
on behalf of their respective account holders.
Because DTC can act only on behalf of participants, who in turn act only on behalf of
participants or indirect participants, and certain banks, trust companies and other persons
approved by it, the ability of a beneficial owner of securities issued in global form to pledge
such securities to persons or entities that do not participate in the DTC system may be limited due
to the unavailability of physical certificates for these securities.
DTC will take any action permitted to be taken by a registered holder of any securities under
our certificate of incorporation or the relevant indenture, warrant agreement, trust agreement,
guarantee or other applicable security only at the direction of one or more participants to whose
accounts with DTC such securities are credited.
Unless otherwise indicated in the applicable prospectus supplement, a global security will be
exchangeable for the relevant definitive securities registered in the names of persons other than
DTC or its nominee only if:
|
§ |
|
DTC notifies us that it is unwilling or unable to continue as depositary for that global
security or if DTC ceases to be a clearing agency registered under the Exchange Act when
DTC is required to be so registered; |
|
|
§ |
|
we execute and deliver to the relevant registrar, transfer agent, trustee and/or warrant
agent an order complying with the requirements of the applicable indenture, trust
agreement, warrant agreement, guarantee or other security that the global security will be
exchangeable for definitive securities in registered form; or |
|
|
§ |
|
there has occurred and is continuing a default in the payment of any amount due in
respect of the securities or, in the case of debt securities, an event of default or an
event that, with the giving of notice or lapse of time, or both, would constitute an event
of default with respect to these debt securities. |
Any global security that is exchangeable under the preceding sentence will be exchangeable for
securities registered in such names as DTC directs.
Upon the occurrence of any event described in the preceding paragraph, DTC is generally
required to notify all participants of the availability of definitive securities. Upon DTC
surrendering the global security representing the securities and delivery of instructions for
re-registration, the registrar, transfer agent, trustee or warrant agent, as the case may be, will
reissue the securities as definitive securities, and then such persons will recognize the holders
of such definitive securities as registered holders of securities entitled to the benefits of our
certificate of incorporation or the relevant indenture trust agreement and/or warrant agreement or
other security.
Redemption notices will be sent to Cede & Co. as the registered holder of the global
securities. If less than all of a series of securities are being redeemed, DTC will determine the
amount of the interest of each direct participant to be redeemed in accordance with its then
current procedures.
Except as described above, the global security may not be transferred except as a whole by DTC
to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or to a successor
depositary we appoint. Except as described above, DTC may not sell, assign, transfer or otherwise
convey any beneficial interest in a global security evidencing all or part of any securities unless
the beneficial interest is in an amount equal to an authorized denomination for these securities.
The information in this section concerning DTC and DTCs book-entry system has been obtained
from sources that we believe to be accurate, but we assume no responsibility for the accuracy
thereof. None of us, the Trust, any trustees, any registrar and transfer agent or any warrant
agent, or any agent of any of them, will have any responsibility or liability for any aspect of
DTCs or any participants records relating to, or for payments made on account of, beneficial
interests in a global security, or for maintaining, supervising or reviewing any records relating
to such beneficial interests.
Secondary trading in notes and debentures of corporate issuers is generally settled in
clearing-house or next-day funds. In contrast, beneficial interests in a global security, in some
cases, may trade in the DTCs same-
45
day funds settlement system, in which secondary market trading activity in those beneficial
interests would be required by DTC to settle in immediately available funds. There is no assurance
as to the effect, if any, that settlement in immediately available funds would have on trading
activity in such beneficial interests. Also, settlement for purchases of beneficial interests in a
global security upon the original issuance of the security may be required to be made in
immediately available funds.
PLAN OF DISTRIBUTION
We and the Trust may sell our securities in any of three ways (or in any combination
thereof):
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§ |
|
through underwriters or dealers; |
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§ |
|
directly to purchasers; or |
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§ |
|
through agents. |
Each time that we use this prospectus to sell our securities, we will also provide a
prospectus supplement that contains the specific terms of the offering. The prospectus supplement
will set forth the terms of the offering of such stock, including:
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§ |
|
the name or names of any underwriters, dealers or agents and the type and amounts of
securities underwritten or purchased by each of them; |
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§ |
|
the public offering price of the securities and the proceeds to us and any discounts,
commissions or concessions allowed or reallowed or paid to dealers; and |
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§ |
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any public offering price and any discounts or concessions allowed or reallowed or paid
to dealers may be changed from time to time. |
If underwriters are used in the sale of any securities, the securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The securities may be either offered to the public through underwriting
syndicates represented by managing underwriters, or directly by underwriters. Generally, the
underwriters obligations to purchase the securities will be subject to certain conditions
precedent. The underwriters will be obligated to purchase all of the securities if they purchase
any of the securities.
We and the Trust may sell the securities through agents from time to time. The prospectus
supplement will name any agent involved in the offer or sale of our securities and any commissions
we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its
appointment.
We and the Trust may authorize underwriters, dealers or agents to solicit offers by certain
purchasers to purchase our securities at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified
date in the future. The contracts will be subject only to those conditions set forth in the
prospectus supplement, and the prospectus supplement will set forth any commissions or discounts we
pay for solicitation of these contracts.
Agents and underwriters may be entitled to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act of 1933, as amended, or to contribution
with respect to payments which the agents or underwriters may be required to make in respect
thereof. Agents and underwriters may be customers of, engage in transactions with, or perform
services for us in the ordinary course of business.
We may enter into derivative transactions with third parties, or sell securities not covered
by this prospectus to third parties in privately negotiated transactions. If the applicable
prospectus supplement indicates in connection with those derivatives then the third parties may
sell securities covered by this prospectus and the applicable prospectus supplement, including in
short sale transactions. If so, the third party may use securities pledged by us or borrowed from
us or others to settle those sales or to close out any related open borrowings of stock, and may
use
46
securities received from us in settlement of those derivatives to close out any related open
borrowings of securities. The third party in such sale transactions will be an underwriter and
will be identified in the applicable prospectus supplement (or a post-effective amendment).
LEGAL OPINIONS
The validity of the securities offered hereby will be passed upon for us by Luse Gorman
Pomerenck & Schick, P.C., Washington, D.C.
EXPERTS
The consolidated financial statements of Bridge Bancorp, Inc. appearing in Bridge Bancorp,
Inc.s Annual Report on Form 10-K for the year ended December 31, 2008 and the effectiveness of
Bridge Bancorp, Inc.s internal control over financial reporting as of December 31, 2008 have been
audited by Crowe Horwath LLP, an independent registered public accounting firm, as set forth in its
report thereon, included therein, and incorporated herein by reference upon the authority of such
firm as experts in accounting and auditing.
47
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate of the approximate amount of fees and expenses which we may
incur in connection with the issuance and distribution of the securities being registered, other
than underwriting compensation.
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Securities and Exchange Commission registration fee |
|
$ |
2,790 |
|
Listing fees |
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* |
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Accounting fees and expenses |
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* |
|
Legal fees and expenses |
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* |
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Blue Sky expenses |
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* |
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Printing |
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* |
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Trustees expenses |
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* |
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Fees of rating agencies |
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* |
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Transfer agent fees and expenses |
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* |
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Miscellaneous expenses |
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* |
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Total |
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$ |
2,790 |
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* |
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These fees and expenses depend on the securities offered and the number of securities
issuances and cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers.
Article V of the Registrants bylaws provides as follows:
Section 501 Right to Indemnification
Any person who was, is, or is threatened to be made a party to any action or proceeding,
whether civil or criminal (including an action by or in the right of the Corporation or any other
corporation, partnership, join venture, trust, employee benefit plan or other enterprise which any
director or officer of the Corporation served in any capacity at the request of this Corporation),
by reason of the fact that he, his testator or intestate, is or was a director or officer of the
Corporation, or served such other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise in any capacity, shall be indemnified by the Corporation against all
judgements, fines, amounts paid in settlement and reasonable expenses, including attorneys fees
actually and necessarily incurred in connection with the defense or appeal of any such action or
proceeding, and against any other amounts, expenses and fees similarly incurred; provided that no
indemnification shall be made to or on behalf of any director or officer where indemnification is
prohibited by applicable law. This right of indemnification shall include the right of a director
or officer to receive payment from the Corporation for expenses incurred in defending or appealing
any such action or proceeding in advance of its final disposition; provided that the payment of
expenses in advance of the final disposition of an action or proceeding shall be made only upon
delivery to the Corporation of an undertaking by or on behalf of the director or officer to repay
all amounts so advanced if it should be determined ultimately that the director or officer is not
entitled to be indemnified. The preceding right of indemnification shall be a contract right
enforceable by the director or officer with respect to any claim, cause of action, action or
proceeding accruing or arising while this Bylaw shall be in effect.
Section 502 Authorization of Indemnification
Any indemnification provided for by Section 501 shall be authorized in any manner provided by
applicable law or, in the absence of such law;
48
(a) By the Board of Directors acting by a quorum of directors who are not parties to such
action or proceeding, upon a finding that there has been no judgment or other final adjudication
adverse to the director or officer which establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he personally gained in fact a financial profit or other advantage to which he
was not legally entitled; or
(b) If a quorum under clause (a) is not obtainable, (i) by the Board upon the opinion in
writing of independent legal counsel that indemnification is proper in the circumstances because
there has been no such judgment or other final adjudication adverse to the director or officer, or
(ii) by the shareholders upon a finding that there has been no such judgment or other final
adjudication adverse to the director or officer.
Section 503 Right of Claimant to Bring Suit
If a claim of indemnification is not paid in full by the Corporation within ninety days after
a written claim has been received by the Corporation, the claimant may at any time there- after
bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to recover the expenses of prosecuting such
claim.
Section 504 Non-Exclusivity of Rights
The rights conferred on any person under this Article shall not be exclusive of any other
right which may exist under any statute, provision of the Certificate of Incorporation, Bylaw,
agreement, vote of shareholders or disinterested directors or otherwise.
Section 505 Insurance
Subject to the laws of New York, the Corporation may maintain insurance, as its expense, to
protect itself and any director, officer, employee or agent of the Corporation against any expense,
liability or loss of the general nature contemplated by this Article, whether or not the
Corporation would have the power to indemnify such person against such expense, liability or loss
under the laws of New York.
Section 506 Severability
It is the intent of the Corporation to indemnify its officers and directors to the fullest
extent authorized by the laws of New York as they now exist or may hereafter be amended. If any
portion of this Article shall for any reason be held invalid or unenforceable by judicial decision
or legislative amendment, the valid and enforceable provisions of this Article will continue to be
given effect and shall be construed so as to provide the broadest indemnification permitted by law.
Item 16. Exhibits.
The following is a list of exhibits filed as part of the Registration Statement:
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1.1
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Form of Underwriting Agreement of equity securities* |
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1.2
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Form of Underwriting Agreement of debt securities* |
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1.3
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Form of Underwriting Agreement for capital securities* |
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4.1
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Certificate of Incorporation of the registrant (incorporated by reference to Registrants
amended Form 10, File No. 0-18546, filed October 15, 1990) |
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4.2
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Certificate of Amendment of the Certificate of Incorporation of the Registrant (incorporated
by reference to Registrants Form 10, File No. 0-18546, filed August 13, 1999) |
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4.3
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Certificate of Amendment of the Certificate of Incorporation of the Registrant (incorporated
by reference to Registrants Definitive Proxy Statement, File No. 0-18546, filed November 18,
2008) |
49
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4.4
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Revised By-laws of the Registrant (incorporated by reference to Registrants Form 8-K, File
No. 0-18546, filed December 18, 2007) |
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4.5
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Form of Indenture for Senior Debt Securities (including form of Note) |
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4.6
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Form of Indenture for Subordinated Debt Securities (including form of Note) |
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4.7
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Form of Deposit Agreement for Depositary Shares (including Form of Depositary Share Certificate)* |
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4.8
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Form of Purchase Contract Agreement* |
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4.9
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Form of Preferred Stock Certificate* |
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4.10
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|
Form of Warrant Agreement (including Form of Warrant Certificate)* |
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4.11
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Form of Unit Agreement* |
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4.12
|
|
Certificate of Trust of Bridge Statutory Capital Trust I |
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4.13
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Trust Agreement for Bridge Statutory Capital Trust I |
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4.14
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Form of Amended and Restated Trust Agreement for Bridge Statutory Capital Trust I |
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4.15
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Form of Capital Security for Bridge Statutory Capital Trust I* |
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4.16
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Form of Guarantee Agreement with respect to the capital securities of Bridge Statutory Capital Trust I |
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4.17
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Form of Junior Subordinated Debt Indenture (including Form of Note for Junior Subordinated
Debt Securities) |
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5.1
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Opinion of Luse Gorman Pomerenk & Schick, P.C. |
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5.2
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Opinion of special Delaware counsel to Bridge Statutory Capital Trust I* |
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8.1
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Opinion of counsel as to certain federal income tax matters* |
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12.1
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Computation of Consolidated Ratio of Earnings to Fixed Charges |
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23.1
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Consent of Crowe Horwath LLP |
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23.2
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Consent of Luse Gorman Pomerenk & Schick, P.C. (included in Exhibit 5.1) |
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23.3
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|
Consent of special Delaware counsel to Bridge Statutory Capital Trust I (included in Exhibit 5.1)* |
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24.1
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Power of Attorney (contained on signature page of this filing) |
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25.1
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Form T-1 Statement of Eligibility of the trustee under the Indenture for Senior Debt Securities* |
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25.2
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Form T-1 Statement of Eligibility of the trustee under the Indenture for Subordinated Debt Securities* |
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25.3
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|
Form T-1 Statement of Eligibility of the trustee under the Junior Subordinated Indenture* |
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25.4
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|
Form T-1 Statement of Eligibility of the trustee under the Amended and Restated Trust
Agreement for Bridge Statutory Capital Trust I* |
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25.5
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|
Form T-1 Statement of Eligibility of the trustee under the Guarantee Agreement for the
benefit of holders of the capital securities of Bridge Statutory Capital Trust I* |
|
|
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* |
|
To be filed by amendment with a prospectus supplement or incorporated by reference from a
Current Report on Form 8-K. |
50
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(4) That, for purposes of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or
(b)(7) as part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing
the information required by section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to
which that prospectus relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining any liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The registrant
undertakes that in a primary offering of securities of the registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following
51
communications, the registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the registrant relating to the offering
required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the
registrant or used or referred to by the registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing
material information about the registrant or its securities provided by or on behalf of the
registrant; and
(iv) any other communication that is an offer in the offering made by the registrant to the
purchaser.
The registrant hereby undertakes that, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the registrants annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that for the purposes of determining any
liability under the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement as of the time it was
declared effective.
52
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in Bridgehampton, Town of Southampton, State of New York,
on June 25, 2009.
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BRIDGE BANCORP, INC.
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By: |
/s/ Kevin M. OConnor
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Kevin M. OConnor |
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President and Chief Executive Officer
(Duly Authorized Representative) |
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POWER OF ATTORNEY
We, the undersigned directors and officers of Bridge Bancorp, Inc. (the Company) hereby
severally constitute and appoint Kevin M. OConnor and Howard H. Nolan as our true and lawful
attorney and agent, to do any and all things in our names in the capacities indicated below which
said Kevin M. OConnor and Howard H. Nolan may deem necessary or advisable to enable the Company to
comply with the Securities Act of 1933, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the registration statement on Form S-3
relating to the offering of the Companys Common Stock, including specifically, but not limited to,
power and authority to sign for us in our names in the capacities indicated below the registration
statement and any and all amendments (including post-effective amendments) thereto; and we hereby
approve, ratify and confirm all that said Kevin M. OConnor and Howard H. Nolan shall do or cause
to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on
Form S-3 has been signed by the following persons in the capacities and on the date indicated.
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Signatures |
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Title |
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Date |
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/s/ Kevin M. OConnor
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President, Chief Executive Officer and Director
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June 23, 2009 |
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(Principal Executive Officer) |
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/s/ Howard H. Nolan
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Senior Executive Vice President
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June 23, 2009 |
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and
Chief Financial Officer |
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(Principal Financial and Accounting
Officer) |
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/s/ Thomas J. Tobin
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Director
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June 23, 2009 |
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Signatures |
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Title |
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Date |
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/s/ Marcia Z. Hefter
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Chairperson of the Board
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June 23, 2009 |
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/s/ Dennis A. Suskind
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Vice Chairperson of the Board
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June 23, 2009 |
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/s/ Emanuel Arturi
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Director
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June 23, 2009 |
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/s/ Thomas E. Halsey
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Director
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June 23, 2009 |
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/s/ R. Timothy Maran
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Director
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June 23, 2009 |
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Director |
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/s/ Albert E. McCoy, Jr.
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Director |
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June 23, 2009 |
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Director |
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EXHIBIT INDEX
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4.5
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Form of Indenture for Senior Debt Securities (including form of Note) |
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4.6
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Form of Indenture for Subordinated Debt Securities (including form of Note) |
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4.12
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Certificate of Trust of Bridge Statutory Capital Trust I |
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4.13
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Trust Agreement for Bridge Statutory Capital Trust I |
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4.14
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Form of Amended and Restated Trust Agreement for Bridge Statutory Capital Trust I |
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4.16
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Form of Guarantee Agreement with respect to the capital securities of Bridge Statutory Capital Trust I |
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4.17
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Form of Junior Subordinated Debt Indenture (including Form of Note for Junior Subordinated
Debt Securities) |
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5.1
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Opinion of Luse Gorman Pomerenk & Schick, P.C. |
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12.1
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Computation of Consolidated Ratio of Earnings to Fixed Charges |
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23.1
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Consent of Crowe Horwath LLP |
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23.2
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Consent of Luse Gorman Pomerenk & Schick, P.C. (included in Exhibit 5.1) |
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24.1
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Power of Attorney (contained on signature page of filing) |
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25.3
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Form T-1 Statement of Eligibility of the trustee under the Junior Subordinated Indenture |
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25.4
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Form T-1 Statement of Eligibility of the trustee under the Amended and Restated Trust
Agreement for Bridge Statutory Capital Trust I |
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25.5
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Form T-1 Statement of Eligibility of the trustee under the Guarantee Agreement for the
benefit of holders of the capital securities of Bridge Statutory Capital Trust I |