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EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made and entered
into effective as of the _____ day of ______________, 1994, by and among GULF
WEST BANKS, INC., a Florida corporation, XXXXXX X. XXXXXXXX, an individual
("Xxxxxxxx"), and XXXX XX. XXXXXXXXX, an individual ("Galbraith"). Xxxxxxxx and
Galbraith are sometimes hereinafter individually referred to as a "Shareholder"
and collectively as the "Shareholders."
W I T N E S S E T H :
WHEREAS, Xxxxxxxx is the Chairman of the Board and President of the
Company and owns or has the right to acquire 210,447 shares (the "Xxxxxxxx
shares") of the Company's Common Stock (as defined below);
WHEREAS, Galbraith is a director of the Company and owns or has the
right to acquire 294,562 shares (the "Galbraith shares") of the Company's Common
Stock (as defined below);
WHEREAS, the Shareholders have requested to obtain from the Company,
and the Company has agreed to grant to the Shareholders, certain rights with
respect to the Shares (as defined below) owned by the Shareholders.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound thereby, agree as follows:
SECTION 1. CERTAIN DEFINITIONS. As used in this Agreement, the
following terms have the following meanings (all terms defined in this Agreement
in this singular to have the same meanings when used in the plural and vice
versa):
(a) "Act" shall mean the Securities Act of 1933, as amended.
(b) "Xxxxxxxx" shall have the meaning set forth in the preamble hereto.
(c) "Xxxxxxxx shares" shall have the meaning set forth in the preamble
hereto.
(d) "Commission" shall mean the United States Securities and Exchange
Commission.
(e) "Common Stock" shall mean the Company's common stock, par value
$1.00 per share, including the Shares.
(f) "Company" shall mean Gulf West Banks, Inc., a Florida corporation.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
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(h) "Galbraith" shall have the meaning set forth in the preamble
hereto.
(i) "Galbraith shares" shall have the meaning set forth in the preamble
hereto.
(j) "IPO" shall mean an initial public offering by the Company.
(k) "Shares" shall mean the Xxxxxxxx shares and the Galbraith shares,
collectively.
SECTION 2. REGISTRATION RIGHTS.
(a) If the Company shall file a registration statement (other than
pursuant to subsection (b) below and other than any registration statement on
Form X-0, Xxxx X-0, or any successor form or other form not permitting
registration of securities offered by selling security holders) with the
Commission at any time while any of the Shares are owned by the Shareholders,
the Company shall give each of the Shareholders at least 45 days' prior written
notice of the filing of such registration statement. If requested by any
Shareholder in writing within 30 days after receipt of such notice, the Company
shall, at the Company's sole expense (other than fees and disbursements of
counsel for any of the Shareholders and the underwriting discounts and
commissions, if any, payable in respect of the Shares sold by any Shareholder),
register or qualify all or, at each Shareholder's option, any portion of the
Shares of any Shareholder who shall have made such request, concurrently with
the registration of such other securities, all to the extent requisite to permit
the public offering and sale of the Shares through the facilities of all
appropriate securities exchanges and the over-the-counter market, and will use
its best efforts through its officers, directors, auditors, and counsel to cause
such registration statement to become effective as promptly as practicable.
(b) If, at any time after the date of this Agreement, the Company shall
receive the written request from any Shareholder to register the offer and sale
of all or part of his Shares, the Company shall, as promptly as practicable,
prepare and file with the Commission a registration statement sufficient to
permit the public offering and sale of such Shares through the facilities of all
appropriate securities exchanges and the over-the-counter market, and will use
its best efforts through its officers, directors, auditors, and counsel to cause
such registration statement to become effective as promptly as practicable;
provided, however, that the Company shall only be obligated to file one
registration statement for each Shareholder under this paragraph (b) for which
all expenses incurred in connection with such registration (other than fees and
disbursements of counsel for any of the Shareholders and the underwriting
discounts and commissions, if any, payable in respect of the Shares sold by any
Shareholder) shall be borne by the Company. Within three business days after
receiving any request contemplated by this Section 2(b), the Company shall give
written notice to the other Shareholder, advising him that the Company is
proceeding with such registration and offering to include therein all or any
portion of such other Shareholders' Shares, provided that the Company receives a
written request to do so from such Shareholder within 30 days after receipt by
him of the Company's notice. Notwithstanding the foregoing provisions of this
Section 2(b), if the Company shall receive a written request from any
Shareholder to register the offer and sale of all or part of his Shares pursuant
to this Section 2(b) and, at the time the Company receives such request, the
Company (in its sole discretion) believes that it would not be in the best
interests of the Company to begin
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the preparation and filing of a registration statement due to other activities
or operations undertaken by the Company at such time, then the Company may delay
beginning the preparation and filing of the registration statement for a period
not to exceed 180 days from the date on which the Company receives such request.
(c) Notwithstanding any other provision of this Section 2, if the
Company shall receive a written request from any Shareholder to register the
offer and sale of all or part of his Shares pursuant to Section 2(b) above and,
at the time the Company receives such request, the Company intends to begin (or
has already begun) the preparation and filing of a registration statement (other
than any registration statement on Form X-0, Xxxx X-0, or any successor form or
other form not permitting registration of securities offered by selling security
holders) with the Commission relating to the offer and sale of shares of Common
Stock for the Company's account, the Company may proceed with such registration
and treat such Shareholder's request as if it were made pursuant to Section 2(a)
above and subject to the other terms and conditions set forth herein.
(d) Notwithstanding any other provision of this Section 2, if the
managing underwriter of any offering covered by a registration statement
described in Sections 2(a), 2(b), or 2(c) above advises the Shareholders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, the Common Stock held by shareholders other than the
Shareholders ("Other Shareholders") shall first be excluded from such
registration on a pro rata basis in proportion to ownership of Common Stock
(treating for such purposes convertible securities as if converted into Common
Stock) by the Other Shareholders to the extent so required by such limitation.
Thereafter, the Shares held by the Shareholders shall be excluded from such
registration on a pro rata basis in proportion to ownership of Shares (treating
for such purposes convertible securities as if converted into Common Stock) by
the Shareholders to the extent required by such limitation.
(e) In the event of a registration pursuant to this Section 2, the
Company shall use its best efforts to cause the Shares so registered to be
registered or qualified for sale under the securities or blue sky laws of such
jurisdictions as any Shareholder may reasonably request; provided, however, that
the Company shall not by reason of this Section 2(e) be required to qualify to
do business in any state in which its is not otherwise required to qualify to do
business or to file a general consent to service of process.
(f) The Company shall keep effective any registration or qualification
contemplated by this Section 2 and shall from time to time amend or supplement
each applicable registration statement, preliminary prospectus, final
prospectus, application, document and communication for such period of time as
shall be required to permit the Shareholders to complete the offer and sale of
the Shares covered thereby. The Company shall in no event be required to keep
any such registration or qualification in effect for a period in excess of nine
months from the date on which the Shareholders are first free to sell such
Shares; provided, however, that, if the Company is required to keep any such
registration or qualification in effect with respect to securities other than
the Shares beyond such period, the Company shall keep such registration or
qualification in effect as it relates to the Shares for so long as such
registration or qualification remains or is required to remain in effect in
respect of such other securities.
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(g) In the event of a registration pursuant to the provisions of this
Section 2, the Company shall furnish to each Shareholder such number of copies
of the registration statement and of each amendment and supplement thereto (in
each case, including all exhibits), such reasonable number of copies of each
prospectus contained in such registration statement and each supplement or
amendment thereto (including each preliminary prospectus), all of which shall
conform to the requirements of the Act and the rules and regulations thereunder,
and such other documents as any Shareholder may reasonably request to facilitate
the disposition of the Shares included in such registration.
(h) In the event of a registration pursuant to the provisions of this
Section 2, the Company shall enter into a cross-indemnity agreement and a
contribution agreement, each in customary form, with each underwriter, if any,
and, if requested, enter into an underwriting agreement containing conventional
representations, warranties, allocation of expenses, and customary closing
conditions, including, but not limited to, opinions of counsel and accountants'
cold comfort letters, with any underwriter who acquires any Shares.
SECTION 3. INDEMNIFICATION.
(a) Subject to the conditions set forth below, the Company agrees to
indemnify and hold harmless each Shareholder from and against any and all loss,
liability, charge, claim, damage, and expense whatsoever (which shall include,
for all purposes of this Section 3, but not be limited to, attorneys' fees and
any and all expense whatsoever incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any registration statement, preliminary prospectus, or final
prospectus (as from time to time amended and supplemented), or any amendment or
supplement thereto, relating to the sale of any of the Shares, or (B) in any
application or other document or communication (in this Section 3 collectively
called an "application") executed by or on behalf of the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to register or qualify any of the Shares under the
securities or blue sky laws thereof or filed with the Commission or any
securities exchange; or any omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, unless such statement or omission was made in reliance upon and
in conformity with written information furnished to the Company with respect to
such Shareholder by or on behalf of such person expressly for inclusion in any
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, as the case may be, or
(ii) any breach of any representation, warranty, covenant, or agreement of the
Company contained in this Agreement. The foregoing agreement to indemnify shall
be in addition to any liability the Company may otherwise have, including
liabilities arising under this Agreement.
If any action is brought against any Shareholder (an "indemnified
party") in respect of which indemnity may be sought against the Company pursuant
to the foregoing paragraph, such indemnified party or parties shall promptly
notify the Company in writing of the institution of such action (but the failure
so to notify shall not relieve the Company from any liability other
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than pursuant to this Section 3(a)) and the Company shall promptly assume the
defense of such action, including the employment of counsel (reasonably
satisfactory to such indemnified party or parties) and payment of expenses. Such
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless the employment of such
counsel shall have been authorized in writing by the Company in connection with
the defense of such action or the Company shall not have promptly employed
counsel reasonably satisfactory to such indemnified party or parties to have
charge of the defense of such action or such indemnified party or parties shall
have reasonably concluded that there may be one or more legal defenses available
to it or them or to other indemnified parties which are different from or
additional to those available to the Company, in any of which events such fees
and expenses shall be borne by the Company and the Company shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties. Anything in this Section 3 to the contrary notwithstanding, the Company
shall not be liable for any settlement of any such claim or action effected
without its written consent, which shall not be unreasonably withheld. The
Company shall not, without the prior written consent of each indemnified party
that is not released as described in this sentence, settle or compromise any
action, or permit a default or consent to the entry of judgment, in or otherwise
seek to terminate, any pending or threatened action, in respect of which
indemnity may be sought hereunder (whether or not any indemnified party is a
party thereto), unless such settlement, compromise, consent, or termination
includes an unconditional release of each indemnified party from all liability
in respect of such action. The Company agrees promptly to notify the
Shareholders of the commencement of any litigation or proceedings against the
Company or any of its officers or directors in connection with the sale of any
Shares or any preliminary prospectus, final prospectus, registration statement,
or amendment or supplement thereto, or any application relating to any sale of
any Shares.
(b) Each Shareholder participating in any registration agrees to
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall have signed any registration statement covering
Shares held by the Shareholder, each other person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, and its or their respective counsel, to the same extent as the
foregoing indemnity from the Company to the Shareholders in Section 3(a), but
only with respect to statements or omissions, if any, made in any registration
statement, preliminary prospectus, or final prospectus (as from time to time
amended and supplemented), or any amendment or supplement thereto, or in any
application, in reliance upon and in conformity with written information
furnished to the Company with respect to such Shareholder by or on behalf of
such Shareholder expressly for inclusion in any such registration statement,
preliminary prospectus, or final prospectus, or any amendment or supplement
thereto, or in any application, as the case may be. If any action shall be
brought against the Company or any other person so indemnified based on any such
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, and in respect of which
indemnity may be sought against a Shareholder pursuant to this Section 3(b),
such Shareholder shall have the rights and duties given to the Company, and the
Company and each other person so indemnified shall have the rights and duties
given to the indemnified parties, by the provisions of Section 3(a).
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(c) To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to Section 3(a) or
3(b) (subject to the limitations thereof) but it is found in a final judicial
determination, not subject to further appeal, that such indemnification may not
be enforced in such case, even though this Agreement expressly provides for
indemnification in such case, or (ii) any indemnified or indemnifying party
seeks contribution under the Act, the Exchange Act, or otherwise, then the
Company (including for this purpose any contribution made by or on behalf of any
director of the Company, any officer of the Company who signed any such
registration statement, any controlling person of the Company, and its or their
respective counsel), as one entity, and the Shareholders of the Shares included
in such registration in the aggregate (including for this purpose any
contribution by or on behalf of an indemnified party), as a second entity, shall
contribute to all losses, liabilities, claims, damages, and expenses whatsoever
to which any of them may be subject, on the basis of relevant equitable
considerations such as the relative fault of the Company and such Shareholders
in connection with the facts which resulted in such losses, liabilities, claims,
damages, and expenses. The relative fault, in the case of an untrue statement,
alleged untrue statement, omission, or alleged omission, shall be determined by,
among other things, whether such statement, alleged statement, omission, or
alleged omission relates to information supplied by the Company or by such
Shareholders, and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement, alleged
statement, omission, or alleged omission. The Company and the Shareholders agree
that it would be unjust and inequitable if the respective obligations of the
Company and the Shareholders for contribution were determined by pro rata or per
capita allocation of the aggregate losses, liabilities, claims, damages, and
expenses (even if the Shareholders and the other indemnified parties were
treated as one entity for such purpose) or by any other method of allocation
that does not reflect the equitable considerations referred to in this Section
3(c). In no case shall any Shareholder be responsible for a portion of the
contribution obligation imposed on all Shareholders in excess of his pro rata
share based on the number of Shares owned by him and included in such
registration as compared to the number of Shares owned by all Shareholders and
included in such registration. No person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section 3(c), each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed any
such registration statement, each director of the Company, and its or their
respective counsel shall have the same rights to contribution as the Company,
subject in each case to the provisions of this Section 3(c). Anything in this
Section 3(c) to the contrary notwithstanding, no party shall be liable for
contribution with respect to the settlement of any claim or action effected
without its written consent. This Section 3(c) is intended to supersede any
right to contribution under the Act, the Exchange Act, or otherwise.
SECTION 4. ASSIGNMENT OF REGISTRATION RIGHTS. Rights under this
Agreement may be assigned by each Shareholder to transferees or assignees of
such Shareholder's Shares; provided, however, that the Company is, within a
reasonable time after such transfer or assignment, furnished with written notice
of the name and address of such transferee or assignee and the Shares with
respect to which such registration rights are being assigned; provided, further,
that such assignment shall be effective only if, immediately following such
transfer or assignment,
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the further disposition of such securities by the transferee or assignee is
restricted under the Act. The term "Shareholders" as used in this Agreement
includes permitted assignees of rights under this Agreement in accordance with
this Section 4.
SECTION 5. LOCK-UP AGREEMENT. Each Shareholder agrees, in connection
with an IPO of Common Stock, upon request of the underwriters managing such
initial public offering, to enter into a lock-up agreement with the managing
underwriters providing that such Shareholder will not sell, make any short sale
of, loan, grant any option for the purchase of, or otherwise dispose of any
Shares without the prior written consent of such underwriters until 180 days
following the closing of the IPO.
SECTION 6. FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Agreement
with respect to each Shareholder that such Shareholder shall furnish to the
Company such information regarding himself, the Shares held by him, and the
intended method of distribution of such securities as shall be reasonably
required to effect the registration of the Shares and shall execute such
documents in connection with such registration as the Company may reasonably
request.
SECTION 7. MISCELLANEOUS.
(a) A copy of this Agreement shall be filed with the Secretary of the
Company.
(b) The provisions of this Agreement shall be deemed to apply equally
to the Shares or other securities distributed in respect of the Shares.
(c) At any time and from time to time each party agrees, at its or his
expense, to take such actions and to execute and deliver such documents as may
be reasonably necessary to effectuate the purposes of this Agreement.
(d) Since a breach of the provisions of this Agreement could not
adequately be compensated by money damages, any party shall be entitled, in
addition to any other right or remedy available to him or it, to an injunction
restraining such breach or a threatened breach and to specific performance of
any such provision of this Agreement, and in either case no bond or other
security shall be required in connection therewith, and the parties hereby
consent to such injunction and to the ordering of specific performance.
(e) Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, or by Federal Express, Express Mail, or similar overnight
delivery or courier service or delivered (in person or by telecopy, telex, or
similar telecommunications equipment) against receipt to the party to whom it is
to be given, as follows:
If to the Company: Gulf West Banks, Inc.
000 00xx Xxxxxx Xxxxx
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Xx. Xxxxxxxxxx, XX 00000
fax: 000-000-0000
If to Xxxxxxxx: ___________________________
___________________________
___________________________
If to Galbraith: ___________________________
___________________________
___________________________
Any notice or other communication given by certified mail shall be deemed given
at the time of certification thereof, except for a notice changing a party's
address which shall be deemed given at the time of receipt thereof. Any notice
given by other means permitted by this Section 7(e) shall be deemed given at the
time of receipt thereof.
(f) This Agreement sets forth the entire understanding of the parties
with respect to the subject matter hereof, supersedes all existing agreements
among them concerning such subject matter, and may be amended only by a written
instrument executed by the Company and by each Shareholder who is adversely
affected by such amendment.
(g) This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns, and shall
inure to the benefit of each indemnified party under Section 3.
(h) Any waiver by any party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(i) If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
(j) This Agreement shall terminate on such date as the Shareholders own
no Shares, provided that nothing herein shall affect any rights or obligations
which arise prior to such termination or under Section 3 hereof.
(k) The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
(l) Any masculine personal pronoun shall be considered to mean the
corresponding feminine or neuter personal pronoun, as the context requires.
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(m) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, without regard to
principals of conflict of law thereunder.
(n) The Company and each Shareholder irrevocably consent to the
jurisdiction of the courts of the State of Florida and of any federal court
located in such State in connection with any action or proceeding arising out of
or relating to this Agreement, any document or instrument delivered pursuant to,
in connection with, or simultaneously with this Agreement, or a breach of this
Agreement or any such other document or instrument. In any such action or
proceeding, the Company and each Shareholder waives personal service of any
summons, complaint, or other process and agrees that service thereof may be made
in accordance with Section 7(e). Within 30 days after such service, or such
other time as may be mutually agreed upon in writing by the attorneys for the
parties to such action or proceeding, the party so served shall appear or answer
such summons, complaint, or other process. Should the party so served fail to
appear or answer within such 30-day period or such extended period, as the case
may be, such party shall be deemed in default and judgment may be entered
against such party for the amount or other relief as demanded in any summons,
complaint, or other process so served.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WITNESSES:
GULF WEST BANKS, INC.
By:
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Name:
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Title:
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XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx, an individual
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XXXX XX. XXXXXXXXX
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Xxxx Xx. Xxxxxxxxx, an individual
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