FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT 10.3
FORM OF
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
_____ __, 2010 (the “Effective Date”), by and among United Western Bancorp, Inc., a
Colorado corporation (the “Company”) and Legent Group, LLC, a Delaware limited liability
company (the “Legent Group”).
WHEREAS, United Western Bank, a federal savings bank and a wholly-owned subsidiary of the
Company (“UWB”), the Company, Legent Group and Xxxxx X. Xxxxxx have entered into the
Purchase Agreement (as hereinafter defined), pursuant to which, among other things, UWB has agreed
to purchase from Legent Group all of the issued and outstanding units of membership interest of
Legent Clearing, LLC, a Delaware limited liability company (“Legent Clearing”);
WHEREAS, capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Purchase Agreement; and
WHEREAS, the Purchase Agreement contemplates that a portion of the consideration to be
delivered to Legent Group in connection with its sale of all of the issued and outstanding units of
membership interest of Legent Clearing shall consist of 2,419,688 shares of Common Stock (as
hereinafter defined).
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS
As used in this Agreement, the following terms have the respective meanings set forth below:
“Business Day” shall mean any day that is not a Saturday or Sunday or a day on which
banks are required or permitted to be closed in the State of New York or the State of Colorado.
“Commission” shall mean the Securities and Exchange Commission or any other federal
agency then administering the Securities Act and other federal securities laws.
“Common Stock” shall mean the Common Stock of the Company, par value $0.0001 per
share, as constituted on the Effective Date, and any capital stock into which such Common Stock may
thereafter be changed, and shall also include capital stock of the Company of any other class
(regardless of how denominated) issued to the holders of shares of any Common Stock upon any
reclassification thereof which is also not preferred as to dividends or liquidation over any other
class of stock of the Company and which is not subject to redemption.
“Company” means United Western Bancorp, Inc., a Colorado corporation, and any
successor corporation.
“Convertible Securities” shall mean evidences of indebtedness, shares of capital stock
or other securities that are convertible into or exchangeable for, with or without payment of
additional consideration in cash or property, shares of Common Stock, either immediately or upon
the occurrence of a specified date or a specified event or the passage of time.
“Demand Registration” shall have the meaning set forth in Section 3.2(b)(i)
hereof.
“Demand Registration Statement” shall have the meaning set forth in Section
3.2(b)(ii) hereof.
“Designated Office” shall mean, initially, the office of the Company at 000
00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000; provided, however, that
the Company may from time to time change the Designated Office to another office of the Company or
its agent within the United States by notice given to all SS Holders at least ten Business Days
prior to the effective date of such change.
“Effective Date” shall have the meaning set forth in the preamble hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any
similar federal statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect from time to time.
“Holder” shall mean, with respect to each share of the Subject Stock, the Person in
whose name such share of Subject Stock is registered on the books of the Company maintained for
such purpose.
“Legent Clearing” shall mean Legent Clearing, LLC, a Delaware limited liability
company.
“Legent Group” shall mean Legent Group, LLC, a Delaware limited liability company.
“Majority Selling Holders” shall mean those Selling Holders whose shares of Subject
Stock included in a registration under Article 3 hereof represents a majority of the shares
of Subject Stock included therein by all Selling Holders.
“Majority SS Holders” shall mean, with respect to a given determination, the Holders
of Subject Stock representing more than fifty percent (50%) of all Subject Stock directly affected
by such determination.
“Mandatory Shelf Registration Statement” shall have the meaning set forth in
Section 3.2(a) hereof.
“Opinion of Counsel” means a written opinion of counsel (who may be an employee of a
Holder) chosen by the Holder of any Subject Stock, addressed to the Company and in form and
substance reasonably acceptable to the Company.
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“Original Subject Stock” shall mean the Subject Stock originally issued by the Company
to Legent Group on the Effective Date.
“Person” shall mean any individual, sole proprietorship, partnership, limited
liability company, joint venture, trust, incorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether federal, state, county,
city, municipal or otherwise, including, without limitation, any instrumentality, division, agency,
body or department thereof).
“Prospectus” shall mean the prospectus included in any Registration Statement,
including any preliminary prospectus, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such prospectus.
“Purchase Agreement” shall mean that certain Purchase Agreement, dated as of June 9,
2010, by and among UWB, the Company, Legent Group and Xxxxx X. Xxxxxx.
“Register,” “registered” and “registration” shall refer to a
registration effected by preparing and filing a registration statement on Form S-1 or S-3 in
compliance with the Securities Act, and the declaration or ordering by the Commission of
effectiveness of such registration statement.
“Registrable Securities” shall mean any shares of Subject Stock; provided,
however, that, with respect to any particular Registrable Securities, such securities will
cease to be Registrable Securities when (i) a registration statement covering such Registrable
Securities has been declared effective under the Securities Act by the Commission and such
Registrable Securities have been disposed of pursuant to such effective registration statement, or
(ii) the entire amount of such Registrable Securities may be sold in a single sale, based on the
Opinion of Counsel, without any limitation as to volume or manner pursuant to Rule 144 promulgated
under the Securities Act.
“Registration Statement” shall mean any Mandatory Registration Statement or Demand
Registration Statement.
“Securities Act” shall mean the Securities Act of 1933, as amended, or any successor
legislation to such statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
“Selling Holders” shall mean, with respect to a specified registration under
Article 3 hereof, SS Holders whose Registrable Securities are included in such
registration.
“SS Holders” shall mean, collectively, all Holders of Subject Stock.
“Stock Purchase Rights” shall mean any options, warrants or other securities or rights
to subscribe to or exercisable for the purchase of shares of Common Stock or Convertible
Securities, whether or not immediately exercisable.
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“Subject Stock” generally shall mean the Original Subject Stock and all Common Stock
issued upon Transfer, division or combination of, or in substitution for, such Original
Subject Stock or any other such Common Stock until such time as such shares of Common Stock
have either been (a) Transferred in a public offering pursuant to a registration statement filed
under the Securities Act or (b) Transferred in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under Section 4(1) thereof with all transfer
restrictions and restrictive legends with respect to such Common Stock being removed in connection
with such transaction. “Subject Stock” for the purposes of Article 3 hereof shall
have the meaning set forth in Section 3.1 hereof.
“Transfer” shall mean any disposition of any Subject Stock or of any interest in
either thereof, which would constitute a “sale” thereof within the meaning of the Securities Act.
“UWB” shall mean United Western Bank, a federal savings bank and a wholly-owned
subsidiary of the Company.
“Violation” shall have the meaning set forth in Section 3.7(a) hereof.
“Withdrawal” shall have the meaning set forth in Section 3.2(b)(iii) hereof.
ARTICLE 2
TRANSFER RESTRICTIONS
TRANSFER RESTRICTIONS
The Holder, by acceptance of any Subject Stock, agrees to be bound by the provisions of this
Article 2.
2.1. Restrictions on Transfers. No shares of Subject Stock shall be Transferred other
than pursuant to an effective registration statement under the Securities Act or an exemption from
the registration provisions thereof. No Transfer of any shares of Subject Stock other than
pursuant to such an effective registration statement shall be valid or effective unless the Holder
of such Subject Stock proposed to be Transferred shall have delivered to the Company an Opinion of
Counsel to the effect that such proposed Transfer is exempt from the registration requirements of
the Securities Act. Each certificate, if any, evidencing such shares of Subject Stock issued upon
any such Transfer, other than in a public offering pursuant to an effective registration statement,
shall bear the restrictive legend set forth in Section 2.2 hereof, unless the Holder
delivers to the Company an Opinion of Counsel to the effect that such legend is not required for
the purposes of compliance with the Securities Act. Holders of the Subject Stock shall not be
entitled to Transfer such Subject Stock except in accordance with this Section 2.1.
Notwithstanding the foregoing or anything else herein to the contrary, the restrictions set forth
in this Section 2.1 shall not apply to any Transfer or distribution of the Original Subject
Stock by Legent Group to the members of Legent Group as contemplated by the Purchase Agreement.
2.2. Restrictive Legend. Except as otherwise provided in this Article 2, each
certificate for Subject Stock initially issued on the Effective Date, and each certificate for
Subject Stock issued to any subsequent transferee of any Subject Stock, shall be stamped or
otherwise imprinted with two legends in substantially the following forms:
“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAW.
NO TRANSFER OF
THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL BE VALID OR EFFECTIVE UNLESS (A)
SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR (B) THE HOLDER OF THE SHARES PROPOSED TO BE TRANSFERRED SHALL HAVE DELIVERED TO
THE COMPANY AN OPINION OF COUNSEL THAT SUCH PROPOSED TRANSFER IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT.”
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“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ENTITLED TO THE BENEFIT OF AND ARE
SUBJECT TO CERTAIN OBLIGATIONS SET FORTH IN A REGISTRATION RIGHTS AGREEMENT BETWEEN
THE COMPANY AND THE ORIGINAL HOLDER OF SUCH SHARES. A COPY OF SUCH REGISTRATION
RIGHTS AGREEMENT IS AVAILABLE FROM THE COMPANY UPON REQUEST.”
2.3. Termination of Securities Law Restrictions. Notwithstanding the foregoing
provisions of this Article 2, the restrictions imposed by Section 2.1 hereof upon
the transferability of the Subject Stock and the legend requirements of Section 2.2 hereof
shall terminate as to any particular shares of Subject Stock when the Company shall have received
from the Holder thereof an Opinion of Counsel to the effect that such legend is not required in
order to ensure compliance with the Securities Act. Wherever the restrictions imposed by
Sections 2.1 and 2.2 hereof shall terminate as to any shares of Subject Stock, as
hereinabove provided, the Holder thereof shall be entitled to receive from the Company, at the
Company’s expense, a new certificate representing such Common Stock not bearing the applicable
restrictive legend set forth in Section 2.2 hereof, upon surrender to the Company at the
Designated Office of the certificate for such shares of Subject Stock with respect to which such
restrictions have terminated, which certificate shall promptly be cancelled.
2.4. Listing on Stock Exchange. For so long as the Company shall list any shares of
Common Stock on any stock exchange, it shall, at its expense, list thereon, maintain and, when
necessary, increase such listing of, all shares of Subject Stock.
ARTICLE 3
REGISTRATION RIGHTS
REGISTRATION RIGHTS
3.1. Definition of Subject Stock. For the purposes of this Article 3,
“Subject Stock” shall be deemed to include not only shares of Common Stock already included
in the general definition of such term, but also (i) any other securities issued as (or issuable
upon the conversion or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange by the Company generally for, or in
replacement by the Company generally of, any shares of Subject Stock and (ii) any securities issued
in exchange for any such Subject Stock in any merger or reorganization of the Company, but in
either such case only so long as such securities have not been registered and Transferred pursuant
to the Securities Act or Transferred in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act under Section 4(1) thereof so that all transfer
restrictions and restrictive legends with respect to such securities are removed in connection with
such Transfer.
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3.2. Mandatory Registration.
(a) Mandatory Shelf Registration. As soon as practicable following the Effective
Date, but in any event no later than 60 days after the Effective Date, the Company shall prepare
and file with the Commission a Registration Statement on Form S-3 providing for the resale of all
of the Registrable Securities pursuant to Rule 415 promulgated under the Securities Act (such
registration statement, including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference, if any, in such
registration statement, the “Mandatory Shelf Registration Statement”), and shall use its
commercially reasonable efforts to cause such Mandatory Shelf Registration Statement to be declared
effective under the Securities Act as promptly as practicable thereafter (but in no event later
than 90 days after the Effective Date); provided, however, that if on the Effective
Date the Company is not eligible to use Form S-3, the Company (i) shall notify the SS Holders of
such ineligibility in writing and (ii) shall, subject to Section 3.2(b), continue to be
obligated to file the Mandatory Shelf Registration Statement if and when it becomes eligible to use
Form S-3. The Company shall not, without the written consent of the Majority SS Holders, permit
any securities other than the Registrable Securities to be included in the Mandatory Shelf
Registration Statement. The Company shall use its commercially reasonable efforts to keep the
Mandatory Shelf Registration Statement continuously effective under the Securities Act until such
time as all of the Registrable Securities registered under such Mandatory Shelf Registration
Statement have been sold. The Company shall notify the SS Holders when the Mandatory Shelf
Registration Statement has been declared effective.
(b) Demand Registration.
(i) If the Company is not eligible to use Form S-3 on the Effective Date and does not
become eligible to use Form S-3 on or prior to December 31, 2010, then at any time
commencing on January 1, 2011, the Majority SS Holders may request registration under the
Securities Act of their Registrable Securities (a “Demand Registration”) on Form S-1
(or such other form as the Company is then eligible to use). The request for a Demand
Registration shall be in writing and shall specify the number of Registrable Securities
requested to be registered and the intended method of distribution. Within five Business
Days after receipt of any request for a Demand Registration, the Company shall given written
notice of such requested registration to all other SS Holders and, subject to Section
3.2(e), shall include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within 15 Business
Days after receipt of the Company’s notice, it being understood that any request for
inclusion under this Section 3.2(b) shall not be deemed a Demand Registration.
(ii) Following receipt of such a request for a Demand Registration, the Company shall
file the requested registration statement (such registration statement, including the
Prospectus, amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto and all material
incorporated by reference or deemed to be incorporated by reference, if any, in such
registration statement, the “Demand Registration Statement”) with the Commission as
promptly as practicable, but in any event no later than 45 days after the date such request
for a Demand Registration is made, and shall use its commercially reasonable
efforts to cause the Demand Registration Statement to be declared effective under the
Securities Act as promptly as practicable thereafter (but in no event later than 120 days
after the filing thereof). The Company shall use its commercially reasonable efforts to
keep the Demand Registration Statement continuously effective under the Securities Act until
such time as all of the Registrable Securities registered under such Demand Registration
Statement have been sold. The Company shall notify each of the Selling Holders in such
registration when the Demand Registration Statement has been declared effective.
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(iii) The Company shall not be obligated to effect more than two Demand Registrations
hereunder. A request for Demand Registration shall be deemed to have been effected for
purposes of this Section 3.2(b) if the registration statement relating to such
Demand Registration has been declared effective by the Commission and, subject to
Section 3.2(c), remains effective for a period of not less than 365 days;
provided, however, that if the Majority Selling Holders request that the
Company withdraw the registration statement relating to such Demand Registration Statement
prior to it being declared effective by the Commission, or if the Majority Selling Holders
revoke such Demand Registration prior to the initial filing of the Demand Registration
Statement relating to such Demand Registration (any such request or revocation, a
“Withdrawal”), none of such Selling Holders shall be entitled to make a subsequent
Demand Registration prior to the six-month anniversary of such Withdrawal.
(c) Postponement. The Company shall be entitled to postpone for up to 60 days the
filing of any Mandatory Shelf Registration Statement or Demand Registration Statement otherwise
required to be prepared and filed pursuant to this Section 3.2 if the Board of Directors of
the Company determines, in its good faith reasonable judgment, that such registration and the
Transfer of Subject Stock contemplated thereby would materially and adversely interfere with, or
would require disclosure of material, non-public information not otherwise required to be disclosed
under applicable law relating to, any material transaction or other material event that is being
contemplated by the Company and the Company promptly gives the Selling Holders in such registration
written notice of such determination; provided, however, that the Company shall not
be entitled to postpone pursuant to this Section 3.2(c) the filing of any Mandatory Shelf
Registration Statement or Demand Registration Statement otherwise required to be prepared and filed
pursuant to this Section 3.2 more than two times or for more than 90 days in the aggregate
during any twelve-month period.
(d) Selection of Underwriters. If any registration pursuant to this Section
3.2 involves an underwritten offering (whether on a “firm,” “best efforts” or “all reasonable
efforts” basis or otherwise), or an agented offering, the Majority Selling Holders shall have the
right to select the underwriter or underwriters and manager or managers to administer such
underwritten offering or the placement agent or agents for such agented offering; provided,
however, that each Person so selected shall be reasonably acceptable to the Company.
(e) Inclusion in Underwritten Offering. If the managing underwriter or underwriters,
if any, shall advise the Company in writing (with a copy to each Selling Holder) that, in its
opinion, the amount of Subject Stock requested to be included in any registration pursuant to this
Section 3.2 would materially adversely affect such offering, or the timing thereof, then
the Company will include in such registration, to the extent of the amount and class which
the Company is so advised can be sold without such material adverse effect in such offering:
first, the Registrable Securities requested to be included in such registration by Selling Holders
pursuant to this Section 3.2, on a pro rata basis based on the total number of such shares
requested to be included; and second, all other securities requested to be included in such
registration.
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3.3. Registration Procedures. Whenever required under Section 3.2 hereof to
effect the registration of any Registrable Securities, the Company shall:
(a) prepare and file with the Commission a Registration Statement with respect to such
Registrable Securities and use the Company’s commercially reasonable efforts to cause such
Registration Statement to become effective, which Registration Statement shall comply as to form in
all material respects with the requirements of the Securities Act; provided,
however, that before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, including documents incorporated by reference after the initial filing of the
registration statement and prior to effectiveness thereof, the Company shall furnish to the Selling
Holders and a single counsel for the Selling Holders (selected by the Majority Selling Holders)
copies of all such documents in the form substantially as proposed to be filed with the Commission
at least five Business Days prior to filing for review and comment by such counsel; and the Company
shall provide to the Selling Holders and such counsel, within three Business Days of receipt by the
Company or its counsel, copies of any material correspondence with or from the Commission or its
staff with respect to a Registration Statement;
(b) prepare and file with the Commission such amendments and supplements to such Registration
Statement and the Prospectus used in connection with such Registration Statement as may be
necessary to comply with the provisions of the Securities Act and rules thereunder with respect to
the disposition of all securities covered by such Registration Statement;
(c) if during any period in which such Registration Statement is effective any event or
development occurs as a result of which such Registration Statement or Prospectus contains an
untrue statement of a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances in which they were
made, not misleading, promptly notify each Selling Holder thereof, amend the Registration Statement
or supplement the Prospectus so that each will thereafter comply with the Securities Act and
furnish to each Selling Holder of Registrable Securities such amended or supplemented Registration
Statement or Prospectus, which each such Selling Holder shall thereafter use in the disposition of
Registrable Securities covered by such Registration Statement;
(d) furnish to each Selling Holder of Registrable Securities, without charge, such numbers of
copies of the Registration Statement, any pre-effective or post-effective amendment thereto, the
Prospectus and any amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act, and such other related documents as any such Selling Holder may
reasonably request in order to facilitate the disposition of Registrable Securities owned by such
Selling Holder;
(e) use the Company’s commercially reasonable efforts to register or qualify the securities
covered by such Registration Statement under such other securities or “blue sky” laws of such
states or jurisdictions as shall be reasonably requested by any Selling Holder and do any and all
other reasonable acts and things which may be necessary or reasonably advisable to
enable each Selling Holder to consummate the disposition in such states or jurisdictions of
the Registrable Securities owned by such Selling Holder; provided, however, that
the Company shall not be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such state or jurisdiction;
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(f) in the event of any underwritten or agented offering, enter into and perform the Company’s
obligations under an underwriting or agency agreement (including indemnification and contribution
obligations of underwriters or agents), in usual and customary form, with the managing underwriter
or underwriters of or agents for such offering, and cooperate with the Majority Selling Holders and
the managing underwriter for such offering in the marketing of the Subject Stock, including making
available the Company’s officers, accountants, counsel, premises, books and records for such
purpose;
(g) promptly notify each Selling Holder of any stop order issued or threatened in writing to
be issued by the Commission in connection therewith (and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered);
(h) make generally available to the Company’s security holders copies of all periodic reports,
proxy statements and other information referred to in Section 3.9(a) hereof and an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act no later than 90 days
following the end of the twelve-month period beginning with the first month of the Company’s first
fiscal quarter commencing after the effective date of each Registration Statement filed pursuant to
this Article 3;
(i) make available for inspection by any Selling Holder, any underwriter participating in such
offering and the representatives of such Selling Holder and underwriter (but not more than one firm
of counsel to such Selling Holders) all financial and other information as shall be reasonably
requested by them, and provide each Selling Holder, any underwriter participating in such offering
and the representatives of such Selling Holder and underwriter the opportunity to discuss the
business affairs of the Company with its principal executives and independent public accountants
who have certified the audited financial statements included in such Registration Statement, in
each case as necessary to enable them to exercise their due diligence responsibility under the
Securities Act; provided, however, that information that the Company determines, in
good faith, to be confidential and which the Company advises such Person in writing, is
confidential shall not be disclosed unless such Person signs a confidentiality agreement reasonably
satisfactory to the Company, or the related Selling Holder of Registrable Securities agrees to be
responsible for such Person’s breach of confidentiality on terms reasonably satisfactory to the
Company;
(j) use its commercially reasonable efforts to obtain “comfort letters” from its independent
public accountants, dated as of the effective date of such Registration Statement and as of the
date of the closing under any applicable underwriting agreement, and legal opinions of counsel to
the Company dated as of the date of the closing under any applicable underwriting agreement, in
each case addressed to the Selling Holders and the underwriters, if any, in customary form and
covering such matters of the type customarily covered by such letters and opinions, and in a form
that shall be reasonably satisfactory to the Majority Selling Holders; and furnish to each Selling
Holder a signed counterpart of any such comfort letter or legal opinion;
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(k) provide and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by such Registration Statement from and after a date not later than the
effective date of such Registration Statement;
(l) use its commercially reasonable efforts to cause the Registrable Securities covered by
such Registration Statement (i) to be listed or included on any stock exchange on which the Common
Stock is then listed and (ii) to be registered with or approved by such other United States or
state governmental agencies or authorities as may be necessary by virtue of the business and
operations of the Company to enable the Selling Holders of Registrable Securities to consummate the
disposition of such Registrable Securities;
(m) in connection with any Transfer of Registrable Securities that will result in the
securities being delivered no longer constituting Registrable Securities, cooperate with the
Selling Holders and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing the Registrable Securities to be sold, which certificates
shall not bear any transfer restriction legends, and to enable such Registrable Securities to be in
such denominations and registered in such names as the Selling Holders or the managing
underwriters, if any, may reasonably request at least three Business Days prior to any sale of such
Registrable Securities;
(n) otherwise use its commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission, including preparing and filing in a timely manner all documents and
reports required by the Exchange Act; and
(o) take such other actions as are reasonably required in order to expedite or facilitate the
disposition of the Registrable Securities covered by such Registration Statement.
3.4. Selling Holders’ Obligations. No Holder shall use any “free writing prospectus”
(as such term is defined in Rule 405 promulgated under the Securities Act) in connection with the
sale of Registrable Securities without the prior written consent of the Company, such consent not
to be unreasonably withheld, conditioned or delayed. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Article 3 with respect to
the Registrable Securities of any Selling Holder that such Selling Holder shall:
(a) furnish to the Company such information regarding such Selling Holder, the number of
Registrable Securities owned by it and the intended method of disposition of such Registrable
Securities as shall be required to effect the registration of such Registrable Securities, and to
cooperate with the Company in preparing such registration; and
(b) agree to sell its Registrable Securities to the underwriters, if any, at the same price
and on substantially the same terms and conditions as the Company or the other Persons on whose
behalf the Registration Statement is being filed have agreed to sell their securities, and to
execute any underwriting agreement agreed to by the Company.
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3.5. Suspension of Sales. If the Company determines in good faith that a Registration
Statement, Prospectus or any amendment or supplement thereto contains or may contain an untrue
statement of a material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, then, upon receipt of written notice from the Company to such
effect, each Holder shall promptly discontinue disposition of Registrable Securities until such
Holder has received copies of an amended or supplemented Registration Statement or Prospectus, or
until such Holder is advised in writing by the Company that the use of such Registration Statement,
Prospectus, amendment or supplement may be resumed (which notice shall be given by the Company
promptly following the time such Registration Statement or Prospectus has been amended or
supplemented or otherwise no longer contains or may contain an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances in which they were made, not misleading), and, if so
directed by the Company, such Holder shall deliver to the Company (at the Company’s expense) all
copies, other than permanent file copies then in such Holder’s possession, of such Registration
Statement, Prospectus, amendment or supplement covering such Registrable Securities current at the
time of receipt of such notice. The number of days that any such suspension or suspensions may be
in effect shall not exceed more than 60 consecutive days or more than an aggregate of 90 days in
any twelve-month period.
3.6. Expenses of Registration. All expenses incident to the Company’s performance of
or compliance with this Article 3, including, without limitation, all registration and
filing fees (including the fees of the Financial Industry Regulatory Authority, or any successor
thereto, and the Commission’s registration fees), fees of any transfer agent and registrar, fees
and expenses of compliance with securities or blue sky laws, printing expenses, reasonable “road
show” or other marketing expenses, fees and disbursements of counsel for the Company, fees and
expenses of the Company’s independent public accountants (including the fees and expenses of any
comfort letters required by or incident to the performance and compliance with this Article
3), fees and expenses of underwriters (excluding discounts and commissions attributable to the
Registrable Securities included in such registration), the Company’s internal expenses, the
expenses and fees for listing the securities to be registered on each stock exchange on which the
Common Stock is then listed and the reasonable fees and disbursements, in an aggregate amount not
to exceed $50,000, of one firm of counsel for the Selling Holders of Registrable Securities, shall
be borne by the Company; provided, however, that the Selling Holders shall bear
their own underwriting discounts or commissions, selling or placement agent or broker fees and
commissions and transfer taxes, if any, in connection with the sales of securities by such Selling
Holders, pro rata on the basis of the aggregate offering or sale price of all Registrable
Securities registered in the applicable registration; further provided, that the Company
shall not be required to pay for any expenses of any Demand Registration if such Demand
Registration is subsequently withdrawn at the request of the Majority Selling Holders (in which
case the Selling Holders shall bear such expenses, on the basis agreed upon by such Selling
Holders), unless SS Holders whose Registrable Securities constitute a majority of the Registrable
Securities then outstanding agree that such withdrawn Demand Registration shall constitute the
exercise of one of the two Demand Registrations under Section 3.2(b)(iii) hereof.
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3.7. Indemnification; Contribution. If any Registrable Securities are included in a
Registration Statement under this Article 3:
(a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless
each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and
each officer, director, partner and employee of such Selling Holder or such controlling Person
against any and all losses, claims, damages, liabilities and expenses (joint or several), including
reasonable attorneys’ fees and disbursements and expenses of investigation, incurred by such Person
pursuant to any action, suit, proceeding or investigation, or to which any of the foregoing Persons
may become subject under the Securities Act, the Exchange Act or other federal or state securities
laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based
upon any of the following statements, omissions or violations (collectively, a
“Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement or the related Prospectus, including any amendments or
supplements thereto;
(ii) the omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading; or
(iii) any violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any applicable state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any applicable state securities law;
provided, however, that the Company shall not be liable in any such case for any
such loss, claim, damage, liability or expense to the extent that it is determined by a court of
competent jurisdiction to have arisen out of or be based upon (x) a Violation which occurred in
reliance upon and in conformity with written information furnished to the Company by the party
seeking indemnification under this Section 3.7(a) expressly for use in connection with such
registration or (y) the failure of the party seeking indemnification under this Section
3.7(a) to deliver a copy of the relevant current Prospectus or any amendments or supplements
thereto after the Company has furnished such party, or any underwriter, with copies of the same in
advance of the time of first offer or sale; further provided, that the indemnification
required by this Section 3.7(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or expense if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, conditioned or delayed. The Company
shall also indemnify any underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in such distribution, their officers, directors, agents and
employees and each person who controls such persons (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect
to the indemnification of the Selling Holders.
(b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold
harmless the Company, each of its directors, each of its officers who shall have signed any
Registration Statement and each Person, if any, who controls the Company (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) against any and all losses,
claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ fees
and disbursements and expenses of investigation, incurred by such Person pursuant to any action,
suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become
subject under the Securities Act, the Exchange Act or other federal or state securities laws,
insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon a
Violation that occurred in reliance upon and in conformity with
written information furnished by such Selling Holder expressly for use in connection with such
registration; provided, however, that (i) the indemnification required by this
Section 3.7(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or expense if settlement is effected without the consent of the relevant Selling
Holder, which consent shall not be unreasonably withheld, conditioned or delayed; and (ii) in no
event shall the amount of any indemnity under this Section 3.7(b) exceed the net proceeds
from the applicable offering received by such Selling Holder.
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(c) Promptly after receipt by an indemnified party under this Section 3.7 of notice of
the commencement of any action, suit, proceeding or investigation, or any threat thereof made in
writing, for which such indemnified party may make a claim under this Section 3.7, such
indemnified party shall deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to
assume the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own counsel, with the
reasonable fees and disbursements and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such indemnified party and any
other party represented by such counsel in such proceeding. The failure to deliver written notice
to the indemnifying party within a reasonable time following the commencement of any such action
shall not relieve such indemnifying party of any liability to the indemnified party under this
Section 3.7 except to the extent that such failure has materially adversely affected the
indemnifying party’s ability to defend such action. Any fees and expenses incurred by the
indemnified party (including any fees and expenses incurred in connection with investigating or
preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred,
within 30 days of written notice thereof to the indemnifying party. Any such indemnified party
shall have the right to employ separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses
of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and
expenses, (ii) the indemnifying party shall have failed to promptly assume the defense of such
action, claim or proceeding or (iii) the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such indemnified party and the indemnifying party,
and such indemnified party shall have been advised by counsel that there may be one or more legal
defenses available to it which are different from or in addition to those available to the
indemnifying party and that the assertion of such defenses would create a conflict of interest such
that counsel employed by the indemnifying party could not faithfully represent the indemnified
party (in which case, if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party
shall not have the right to assume the defense of such action, claim or proceeding on behalf of
such indemnified party, it being understood, however, that the indemnifying party shall not, in
connection with any one such action, claim or proceeding or separate but substantially similar or
related actions, claims or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (together with appropriate local counsel) at any time for all such
indemnified parties). No indemnifying party shall be liable to an indemnified party for any
settlement of any action, proceeding or claim
without the written consent of the indemnifying party, which consent shall not be unreasonably
withheld, conditioned or delayed.
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(d) Contribution.
(i) If the indemnification required by this Section 3.7 from the indemnifying
party is unavailable to an indemnified party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to in this Section 3.7, the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and indemnified parties in connection with the actions which
resulted in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things, whether any
Violation has been committed by, or relates to information supplied by, such indemnifying
party or indemnified party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set forth in
Section 3.7(a) and Section 3.7(b), any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 3.7(d) were determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable considerations
referred to in Section 3.7(d)(i) hereof. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(e) If indemnification is available under this Section 3.7, the indemnifying parties
shall indemnify each indemnified party to the full extent provided in this Section 3.7
without regard to the relative fault of such indemnifying party or indemnified party or any other
equitable consideration referred to in Section 3.7(d) hereof.
(f) The indemnification required by this Section 3.7 shall be made by periodic
payments of the amount thereof during the course of the investigation or defense, as and when bills
are received or expense, loss, damage or liability is incurred.
(g) The obligations of the Company and the Selling Holders of Registrable Securities under
this Section 3.7 shall survive the completion of any offering of Registrable Securities
pursuant to a Registration Statement under this Article 3.
3.8. Holdback. Each SS Holder entitled pursuant to this Article 3 to have
Registrable Securities included in a Registration Statement prepared pursuant to this Article
3, if so requested by the managing underwriter in connection with an underwritten or agented
registration of any Registrable Securities, shall not effect any public sale or distribution of
shares
of Common Stock, Convertible Securities or Stock Purchase Rights (excluding any sale pursuant
to Rule 144 or Rule 144A promulgated under the Securities Act and any sale as part of such
underwritten or agented registration), during the five Business Days prior to, or during the 90-day
period beginning on, the date such Registration Statement is declared effective under the
Securities Act by the Commission; provided that such SS Holder is timely notified of such
effective date in writing by the Company or such managing underwriter.
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3.9. Additional Covenants of the Company.
(a) With a view to making available the benefits of certain rules and regulations of the
Commission that may permit the sale of the Registrable Securities to the public without
registration, the Company agrees to, so long as any Holder owns any Registrable Securities:
(i) make and keep public information available, as those terms are understood and
defined in Rule 144(c) promulgated under the Securities Act;
(ii) use its commercially reasonable efforts to file with the Commission in a timely
manner all reports and other documents required to be filed by the Company under the
Securities Act and the Exchange Act; and
(iii) furnish to any Holder promptly upon request a written statement by the Company as
to its compliance in all material respects with the reporting requirements of Rule 144
promulgated under the Securities Act and of the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents of the
Company, and take such reasonable further actions consistent with this Section 3.9,
as such Holder may reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such Registrable Securities without
registration.
(b) The Company shall not effect any public sale or distribution of any shares of Common
Stock, Convertible Securities or Stock Purchase Rights (other than on Form X-0, Xxxx X-0, or any
successor forms to such forms) during the five Business Days prior to, or during the 90-day period
beginning on, the commencement of a public distribution of Registrable Securities pursuant to any
Registration Statement prepared pursuant to this Article 3.
(c) The Company shall not, directly or indirectly: (i) enter into any merger, consolidation or
reorganization in which the Company shall not be the surviving corporation or (ii) Transfer or
agree to Transfer all or substantially all the Company’s assets, unless prior to such merger,
consolidation, reorganization or asset Transfer, the surviving corporation or the Transferee,
respectively, shall have agreed in writing to assume the obligations of the Company under this
Agreement, and for that purpose references hereunder to “Registrable Securities” shall be deemed to
include the securities that the SS Holders would be entitled to receive in exchange for Registrable
Securities pursuant to any such merger, consolidation or reorganization.
(d) The Company shall not enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the SS Holders in this Article 3 or grant any
additional registration rights to any Person or with respect to any securities, in each case, that
are prior in right to or inconsistent with the rights granted in this Agreement.
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ARTICLE 4
MISCELLANEOUS
MISCELLANEOUS
4.1. Term. This Agreement shall commence on the Effective Date and shall terminate on
the earlier of (a) the date on which all of the Subject Shares have ceased to be Registrable
Securities or (b) the third anniversary of the Effective Date; provided, however,
that the provisions of Section 3.7 hereof and of this Article 4 shall survive such
termination.
4.2. Amendment and Waiver. This Agreement may be modified or amended, and the
provisions hereof may be waived, only with the written consent of the Company and any Holder
against whom enforcement of such modification, amendment or waiver is sought. No course of dealing
or any delay or failure to exercise any right hereunder on the part of the Company or any Holder
shall operate as a waiver of such right or otherwise prejudice the rights, powers or remedies of
such Person.
4.3. Notice Generally. Any notice, demand, request, consent, approval, declaration,
delivery or communication hereunder to be made pursuant to the provisions of this Agreement shall
be sufficiently given or made if in writing and either delivered in person with receipt
acknowledged or sent by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
(a) if to any Holder, at its last known address appearing on the books of the Company
maintained for such purpose; and
(b) if to the Company, at the Designated Office;
or at such other address as may be substituted by notice given as herein provided. Every notice,
demand, request, consent, approval, declaration, delivery or other communication hereunder shall be
deemed to have been duly given or served on the date on which personally delivered, with receipt
acknowledged, or three Business Days after the same shall have been deposited in the United States
mail, or one Business Day after the same shall have been delivered to Federal Express or another
overnight courier service.
4.4. Remedies. Each Holder of Subject Stock shall have all rights and remedies set
forth in this Agreement and all rights that such holders have under applicable law. Any Holder of
Subject Stock having any rights under any provision of this Agreement shall be entitled to enforce
such rights specifically (without posting a bond or other security), to recover damages by reason
of any breach of any provision of this Agreement and to exercise all other rights granted by
applicable law.
4.5. Successors and Assigns. Subject to the provisions of Sections 2.1 and
2.2, this Agreement and the rights evidenced hereby shall inure to the benefit of and be
binding upon the successors of the Company and the permitted successors and assigns of the Holders.
The provisions of this Agreement are intended to be for the benefit of all Holders from time to
time of shares of Subject Stock, and shall be enforceable by any such Holder.
4.6. Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Agreement.
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4.7. Headings. The headings used in this Agreement are for the convenience of
reference only and shall not, for any purpose, be deemed a part of this Agreement.
4.8. Governing Law; Waiver of Jury Trial. This Agreement, and all disputes between
the parties under or relating to this Agreement or the facts and circumstances leading to its
execution, whether in contract, tort or otherwise, shall be construed and interpreted according to
the internal laws of the State of Colorado, excluding any choice of law rule or principle that may
result in the application of the laws of another jurisdiction. The Company and each of the Holders
agree (a) to submit to the non-exclusive jurisdiction and venue of any United States District Court
located within the State of Colorado for any civil action, suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby, and (b) that notice may be
served upon the Company at the Designated Office and upon each Holder at the address for such
Holder set forth in the books of the Company maintained for such purpose. To the extent permitted
by applicable law, the Company and each of the Holder hereby unconditionally waive trial by jury in
any civil legal action or proceeding relating to this Agreement or the transactions contemplated
hereby.
[Remainder of page intentionally left blank; signature page follows.]
17
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the
day and year first written above.
| THE COMPANY: UNITED WESTERN BANCORP, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| LEGENT GROUP: LEGENT GROUP, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Registration Rights Agreement]
