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EXHIBIT 2.2
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of August 13, 1997 (this
"Agreement") by and between Boston Private Bancorp, Inc., a Massachusetts
corporation ("BPB") and the several persons signatory hereto (each a
"Stockholder" and collectively the "Stockholders").
BPB, Boston Private Investment Management, Inc. ("BPIM"), Westfield
Capital Management Company, Inc. and the Stockholders are parties to an
Agreement and Plan of Merger dated as of August 13, 1997 (the "Merger
Agreement"), pursuant to which, among other things, the Stockholders will have
the right to receive certain shares (the "Shares") of common stock, $1.00 par
value per share ("Common Stock"), of BPB, all as more fully set forth in the
Merger Agreement.
This Agreement is being entered into to set forth certain rights and
obligations of BPB and the Stockholders with respect to the registration under
the Securities Act of 1933, as amended, or any successor federal statute and the
rules and regulations of the Securities and Exchange Commission (the "SEC")
thereunder, and in the case of any reference to any such statute, rule or
regulation, any successor section (the "Securities Act"), of the offer and sale
of the Shares by the Stockholders, all as more fully set forth in this
Agreement.
In consideration of the foregoing and the respective covenants and
agreements set forth herein, and for other good and valuable consideration, the
parties hereto agree as follows:
Section 1. EFFECTIVENESS OF REGISTRATION RIGHTS. The registration
rights granted pursuant to Sections 2 and 3 hereof shall be effective as of the
closing of the transactions contemplated by the Merger Agreement.
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Section 2. Demand Registration.
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2.1 NOTICE AND REGISTRATION. At any time and from time to time after
the effectiveness of this Agreement, subject to the terms and conditions set
forth here in, upon written notice of Stockholders (as to any such notice and
the related registration of Covered Shares, "Requesting Stockholders")
requesting that BPB effect the registration under the Securities Act of not less
than 100,000 Covered Shares in the aggregate held by them, which notice shall
specify the intended method or methods of disposition of such Covered Shares,
BPB will promptly give written notice (the "BPB Notice") of such requested
registration to all other Stockholders then holding Covered Shares. Any such
Stockholder who wishes to have Covered Shares included in such registration
shall give written notice delivered to BPB within 20 days after the date of the
BPB Notice indicating such intent, upon which such Stockholder will become a
Requesting Stockholder with respect to the related notice and registration. BPB
will use its reasonable best efforts to promptly effect the registration under
the Securities Act of the Covered Shares requested to be registered by the
Requesting Stockholders on Form S-3 or SB-1 (or any successor form substantially
equivalent thereto) or, if such forms are not then available to BPB, such other
appropriate form as BPB may elect, for disposition in accordance with the in
tended method or methods of disposition stated in such request, PROVIDED that:
(a) BPB shall not be required to effect more than one (1)
registration of Covered Shares pursuant to this Section 2 during any consecutive
twelve month period. No registration of Covered Shares under Section 2 which
shall not become effective shall be deemed to be a registration statement for
the purposes of this sentence;
(b) in the event that as to any request for registration
pursuant to this Section 2, Requesting Stockholders request the registration of
more than 800,000 Covered Shares in the aggregate, BPB may in its sole
discretion by written notice to each Requesting Stockholder reduce the number of
Covered Shares of each Requesting Stockholder to be registered in response to
such request, pro rata based on the number of Covered Shares requested to be
registered, to the extent neces-
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sary to reduce the aggregate number of Covered Shares to be registered in
response to such request to not less than 800,000 Covered Shares;
(c) if BPB shall have previously effected a registration, other
than registrations incidental to any securities issued in connection with
mergers, acquisitions, exchange offers, dividend reinvestment plans or stock
option or other benefit plans, under the Securities Act with respect to Common
Stock, BPB shall not be re quired to effect a registration pursuant to this
Section 2 until a period of 90 days shall have elapsed from the effective date
of the most recent such previous registration;
(d) if upon receipt of a registration request pursuant to this
Section 2 BPB is engaged or has firm plans to engage within 90 days of the time
of the request in a registered public offering of securities (a "BPB Offering"),
then BPB may at its option direct that such request be delayed for a period not
in excess of 90 days from the commencement of such public offering, PROVIDED,
however, that in any twelve month period BPB may only one time in the aggregate
exercise its right to either so delay a request or impose a Transaction Black
out;
(e) if, at the time of any request to register Covered Shares
pursuant to this Section 2 or after such request but prior to the filing of the
related registration statement, BPB's Chief Executive Officer determines in good
faith that the filing of a registration statement would require the disclosure
of material information which BPB has a bona fide business purpose for
preserving as confidential, BPB may at its option direct that such request be
delayed until the earlier of (A) the date upon which such material information
is dis closed to the public or ceases to be material or (B) 90 days after the
date of the decision to so delay; PROVIDED, however, that BPB may not so delay
a registration pursuant to this Section 2.1(e) or suspend sales pursuant to a
Transaction Blackout for more than 90 days in the aggregate during any twelve
consecutive month period without the approval of the Board of Directors of BPB;
and
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(f) Stockholders' right to request registration pursuant to
this Section 2 shall terminate in the event that at anytime after the seventh
anniversary hereof BPB offers to register all Covered Shares held by
Stockholders for sale in an underwritten public offering and either (i) no
Stockholder requests to have Covered Shares included in such offering or (ii)
such underwritten public offering is consummated and results in the opportunity
to sell all Covered Shares requested by Stockholders to be included in such
offering.
2.2 REGISTRATION EXPENSES. BPB (as between BPB and the Requesting
Stockholders) shall bear all Registration Expenses in connection with any
registration pursuant to this Section 2, other than underwriting discounts and
commissions, stock transfer taxes or fees and expenses of legal, tax and other
counsel or advisors to the Requesting Stockholders, except that the expenses of
one counsel for the Requesting Stockholders are included in the definition of
Registration Expenses.
2.3 THIRD PERSON AND COMPANY SHARES. BPB shall have the right to
cause the registration of securities for sale for the account of any person
(including the Company) in any registration of Covered Shares requested
pursuant to this Section 2; PROVIDED, however, that in no event shall such
inclusion result in the number of Covered Shares to be included in such
registration being reduced below 800,000 Covered Shares or such lesser number
of Covered Shares sought to be included therein by Requesting Stockholders.
2.4 FINANCIAL INFORMATION. Notwithstanding anything to the contrary
herein, in connection with any registration provided for in this Xxxxxxx 0, XXX
will not be obligated to furnish any financial statements other than the audited
financial statements customarily prepared at the end of its fiscal year and
unaudited financial information now customarily required by the SEC under the
Securities Act and the Securities Exchange Act of 1934, as amended or that may
be required by any successor federal statutes. In the event that additional
financial statements or other financial information or schedules is so required
and is not readily available to BPB, then BPB shall be entitled to defer the
performance of its obligations under this Section 2 until such time as such
additional financial statements will not be so
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required or will be readily available, or, at its option, BPB shall at the
request of Requesting Stockholders prepare such additional financial statements
or other information, and the costs and expenses of BPB in connection
therewith, including salary and related overhead expenses of employees of BPB
and any subsidiary or affiliate of BPB for time expended by such employees in
the preparation of such financial or other information, will be reimbursed to
BPB by the Requesting Stockholders so requesting such preparation.
2.5 ADDITIONAL DEMAND RIGHT. In the event that in any two
consecutive twelve month periods BPB delays a registration pursuant to Section
2.1(e) or suspends sales pursuant to Transaction Blackouts for 90 or more days
in the aggregate during each of such consecutive twelve month periods, upon a
written request by Requesting Stockholders pursuant to Section 2.1 hereof BPB
will use its reasonable best efforts to effect within six months of such request
a registration for an under written public offering pursuant and subject to the
terms and conditions of Section 2 and this Agreement, provided that as applied
to any registration pursuant to this Section 2.5 (i) the references to "800,000
Covered Shares" contained in Section 2.1(b) and in Section 2.3 shall be deemed
to be references to "1,600,000 Covered Shares," (ii) no registration pursuant to
this Section 2.5 shall be counted toward the limitation on registrations
provided in Section 2.1(a) and (iii) Section 2.1(d) and Section 4.3(a) as it
applies to Transaction Blackouts shall be inapplicable.
Section 3. Piggyback Registration.
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3.1 NOTICE AND REGISTRATION. If at any time or from time to time
after the effectiveness of this Agreement BPB proposes to register any Common
Stock ("Other Securities") for public sale under the Securities Act (whether
proposed to be offered for sale by BPB or any other person) in an underwritten
public offering and on a form and in a manner which would permit registration of
Covered Shares for sale to the public under the Securities Act, it will give
written notice to the each Stockholder of its intention to do so, and upon the
written request of Stockholders (as to any such notice and the related
registration of Covered Shares, "Requesting Stockholders") delivered to BPB
within 10 business
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days after the giving of any such notice (which request shall specify the
Covered Shares intended to be disposed of by the Requesting Stockholder)
requesting that BPB include in such registered underwritten public offering any
number of Covered Shares owned by such Requesting Stockholders, BPB will use its
reasonable best efforts to effect, in connection with the registration of the
Other Securities, the registration under the Securities Act of all Covered
Shares which BPB has been so requested to register by such Requesting
Stockholders, to the extent required to permit the disposition of Covered Shares
so to be registered; PROVIDED that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective date of
the registration statement filed in connection with such registration, BPB
shall determine for any reason not to register the Other Securities, BPB shall
give written notice of such determination to the Requesting Stockholders and BPB
may, at its election, be relieved of its obligation to register such Covered
Shares in connection with the registration of such Other Securities (but not
from its obligation to pay Registration Expenses to the extent incurred in
connection therewith as provided in Section 3.2), without prejudice, however, to
the rights (if any) of the Requesting Stockholders immediately to request that
such registration be effected as a registration under Section 2 to the extent
that such request would comply with all of the terms and conditions of Section
2;
(b) if BPB shall have been advised in writing (with a copy to
each Requesting Stockholder) by a nationally recognized independent investment
banking firm selected by BPB (who is then acting as the managing underwriter for
any such offering) that, in such firm's opinion, the inclusion of all or any
portion of the Covered Shares then intended to be disposed of by Re questing
Stockholders in the proposed registration at that time would adversely affect in
a significant manner the registration and offering of the Other Securities, the
number of Covered Shares requested to be included in the proposed registration
shall be reduced on a pro rata basis among all Requesting Stockholders based on
the number of such Covered Shares requested to be included by each such
Requesting Stockholder or, as the case may be, shall all be excluded from such
registration in their
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entirety, to the extent necessary as determined by such investment banking firm
to prevent the proposed registration of Other Securities from being so
effected; PROVIDED, however, that if as a result of the provisions of this
Section 3.1(b), BPB is unable to include in such registration all of the
Covered Shares requested by the Requesting Stockholders for inclusion in such
registration, BPB shall so notify each Requesting Stockholder and give each
Requesting Stockholder the right to withdraw all Covered Shares requested by
the Requesting Stock holder for inclusion in such registration from such
registration by notice to BPB within 5 days after receipt of BPB's notice; and
(c) BPB shall not be required to effect any registration of
Covered Shares under this Section 3 incidental to the registration of any of its
securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
employee benefit or similar plans.
3.2 REGISTRATION EXPENSES. BPB (as between BPB and the Requesting
Stockholders) shall bear all Registration Expenses in connection with any
registration pursuant to this Section 3, other than underwriting discounts and
commissions, stock transfer taxes or fees and expenses of legal, tax and other
counsel or advisors to the Requesting Stockholders, except that the expenses of
one counsel for the Requesting Stockholders are included in the definition of
Registration Expenses.
Section 4. Registration Procedures.
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4.1 REGISTRATION AND QUALIFICATION. If and whenever BPB is required
to use its reasonable best efforts to effect the registration of any Covered
Shares under the Securities Act as provided in Section 2 or Section 3, BPB will
as promptly as is practicable:
(a) in the case of a request pursuant to Section 2, prepare,
file and use its reasonable best efforts to cause to become effective a
registration statement under the Securities Act regarding the Covered Shares to
be offered on such appropriate registration form of the SEC as shall be selected
by BPB;
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(b) in the case of a request pursuant to Section 2, prepare and
file with the SEC such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep
such registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Covered Shares until the
later of (i) such time as all of such Covered Shares have been disposed of in
accordance with the intended methods of disposition by the Requesting
Stockholders set forth in such registration statement (but in no event beyond
the date that a subsequent registration statement filed pursuant to a request
under Section 2 becomes effective) or (ii) the expiration of the time when a
prospectus relating to any sale made within the period contemplated by phrase
(i) of this paragraph is required to be delivered under the Securities Act;
(c) furnish to each Requesting Stockholder and to any
underwriter of such Covered Shares such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus or
prospectus supplement included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act, such documents incorporated by reference in
such registration statement or prospectus as the Requesting Stockholder or such
underwriter may reasonably request in order to facilitate the public sale or
other disposition of the Covered Shares;
(d) use its reasonable best efforts to register or qualify all
Covered Shares covered by such registration statement under such other
securities or blue sky laws of such United States jurisdictions as the
Requesting Stockholders or any underwriter of such Covered Shares shall
reasonably request, except that BPB shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any jurisdiction
where it is not so qualified, or to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) immediately notify each Requesting Stockholder (i) of the
time any registration statement
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filed hereunder becomes effective or when any amendment or supplement or
prospectus forming a part of such registration statement has been filed, (ii)
of any request by the SEC for an amendment or supplement to such registration
statement or prospectus or for additional information, (iii) after BPB shall
have received notice or otherwise obtained knowledge thereof, of the issuance of
any order by the SEC suspending the effectiveness of such registration statement
or any amendment thereto or of the initiation or threatening of any proceeding
for that purpose (and BPB will use its reasonable best efforts to prevent the
issuance of any such stop order or to obtain its withdrawal promptly if such
stop order should be issued) and (iv) at any time when a prospectus relating to
a registration pursuant to Section 2 or Section 3 is required to be delivered
under the Securities Act, of the happening of an event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and,
subject to Section 4.3, at the request of any Requesting Stockholder prepare and
furnish to such Requesting Stockholder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Covered Shares, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading; PROVIDED that the time period set forth in Section 4.1(b)(ii) hereof
shall be extended for a number of days equal to the number of days in the period
from and including the date BPB gave the notice required by this Section 4.1(e)
through the date when BPB delivers such supplement or amendment.
BPB may require each Requesting Stockholder to furnish BPB with such information
regarding such Requesting Stockholder and the distribution of such securities as
BPB may from time to time reasonably request in writing or as shall be required
by law or by the SEC or the National Association of Securities Dealers, Inc.
("NASD") or any underwriter in connection with any registration.
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Each Stockholder hereby agrees to promptly notify BPB of any changes in the
information provided to BPB; and
(f) BPB agrees in the case of an underwritten offering under
Section 2 or Section 3 hereof to refrain, without the consent of the managing
underwriter, for a period from 15 days before the effective date of the
registration statement until 90 days after such effective date, from publicly
selling, offering to sell, publicly selling any option for the sale of any
common equity or securities convertible into common equity other than pursuant
to BPB employee equity plans.
4.2 Underwriting.
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(a) If a registration pursuant to Section 3 involves an
underwritten offering, BPB shall have the right to select the managing
underwriter. If a registration pursuant to Section 2 involves an underwritten
offering, BPB shall consult with the Requesting Stockholders as to the
selection of the managing underwriter(s) for such underwritten offering. BPB
shall have the right after such consultation to select the managing
underwriter(s) for any such underwritten public offering subject to the approval
of Requesting Stockholders holding a majority of the Covered Shares requested
to be registered in such underwritten offering, which approval may not be
unreasonably withheld. Stockholders agree not to discuss the possible engagement
of any managing underwriter with such underwriter without the prior written
consent of BPB.
(b) If requested by the underwriters for any underwritten
offering of Covered Shares pursuant to a registration requested hereunder, BPB
will enter into an underwriting agreement with such underwriters for such
offering, such agreement to contain such representations and warranties by BPB
and such other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Section 6 and the provision to such underwriters and the Requesting
Stockholders of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 4.2(c). The representations and warranties by,
and the other agreements on the part of, BPB to and for the
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benefit of such underwriters shall also be made to and for the benefit of
Requesting Stockholders. As a condition to each Requesting Stockholder's rights
under Section 2 and Section 3, such Requesting Stockholder shall become a party
to any such underwriting agreement, such agreement to contain such
representations and warranties by such Requesting Stockholders and such other
terms and provisions as the underwriters may reasonably request, including
without limitation, indemnities and contributions to the effect and to the
extent provided in Section 6.
(c) In the case of an underwritten offering of Covered Shares,
BPB shall use its reasonable best efforts to obtain and furnish copies to each
Requesting Stockholder (i) copies of an opinion of counsel for BPB which is also
addressed or confirmed to the Requesting Stockholders, dated the date of the
closing under the underwriting agreement, and (ii) a "cold comfort" letter
signed by the independent public accountants who have certified BPB's financial
statements included in such registration statement, each covering substantially
the same matters with respect to such registration statement (and the prospectus
included therein) and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters in
underwritten public offerings of securities.
(d) In the event that any registration pursuant to Section 3
hereof, BPB may require Requesting Stockholders requesting that Covered Shares
be registered pursuant to Section 3 to participate in such underwriting on the
same terms and conditions, and pursuant to the same for of Underwriting
Agreement as shall be applicable to persons seeking the Other Securities to be
sold through underwriters under such registration.
4.3 Blackout Periods.
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(a) At any time when a registration statement effected pursuant
to Section 2 or 3 hereunder relating to Covered Shares is effective, upon
written notice from BPB to the Requesting Stockholders that either:
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(i) BPB has firm plans to engage within 90 days in a BPB
Offering and has been advised in writing (with a copy to the Requesting
Stockholders) by a nationally recognized independent investment banking
firm selected by BPB that, in such firm's opinion, the Requesting
Stockholders' sale of Covered Shares pursuant to the registration statement
would adversely affect in a significant manner such immediately planned BPB
Offering (a "Transaction Blackout"); or
(ii) BPB determines, based on the good faith advice of
outside corporate counsel to BPB, that the Requesting Stockholders' sale of
Covered Shares pursuant to the registration statement would require
disclosure of material information which, in the good faith judgment of
the Chief Executive Officer of BPB, BPB has a bona fide business purpose
for preserving as confidential (an "Information Blackout"),
the Requesting Stockholders shall suspend sales of Covered Shares pursuant to
such registration statement until the earlier of:
(X) (i) in the case of a Transaction Blackout, the earliest of
(A) 90 days after the effectiveness of the registration statement relating
to such BPB Offering, (B) the termination of any "blackout" period required
by the underwriters to be applicable to BPB or the Stockholders, if any, in
connection with such BPB Offering or (C) promptly after abandonment of such
BPB Offering, or (ii) in the case of an Information Blackout, the earlier
of (A) the date upon which such material information is disclosed to the
public or ceases to be material or (B) 90 days after the date of suspension
of sales; or
(Y) such time as BPB notifies the Requesting Stockholders that
sales pursuant to such registration statement may be resumed (the number of
days from such suspension of sales of the Requesting Stockholders until the
day when such sales may be resumed hereunder is hereinafter called a "Sales
Blackout Period");
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PROVIDED that BPB may not impose a Transaction Blackout during any underwritten
public offering.
(b) If there is a Transaction Blackout or an Information
Blackout, the time period set forth in Section 4.1(b)(ii) shall be extended for
a number of days equal to the number of days in the Sales Blackout Period.
4.4 LISTING. In connection with the registration of any offering of
Covered Shares pursuant to this Agreement, BPB agrees to use its reasonable best
efforts, at BPB's expense, to effect the listing of such shares on any
securities exchange on which any shares of the Common Stock are then listed.
Section 5. PREPARATION; REASONABLE INVESTIGATION. In connection
with the preparation and filing of each registration statement registering
Covered Shares under the Securities Act, BPB will give each Requesting
Stockholder and the underwriters, if any, and their respective counsel and
accountants, such reasonable and customary access to its books and records and
such opportunities to discuss the business of BPB with its officers and other
appropriate personnel and the independent public accountants who have certified
its financial statements as shall be reasonably necessary to conduct a
reasonable investigation within the meaning of the Securities Act.
Section 6. Indemnification and Contribution.
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(a) In the event of any registration of any Covered Shares
hereunder, BPB will enter into customary indemnification arrangements to
indemnify and hold harmless the Requesting Stockholders, each person who
participates as an underwriter in the offering or sale of such securities, each
officer and director of each underwriter, and each person, if any, who controls
any such underwriter within the meaning of the Securities Act against any
losses, claims, damages, liabilities or expenses to which such person may be
subject under the Securities Act or otherwise insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings in respect thereof)
arise out of are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
securities were registered under
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the Securities Act, any preliminary prospectus or final prospectus included
therein, any amendment or supplement thereto or any document incorporated by
reference therein or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and BPB will reimburse each such person for any legal or
other expenses reasonably incurred by such person in connection with
investigating or defending any such loss, claim, damage or liability (or action
or proceeding in respect thereof); PROVIDED that BPB shall not be liable in any
such case to the extent that any such loss, claim, damage or liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus or
final prospectus, amendment or supplement (A) in reliance upon and in conformity
with written information furnished to BPB by any Requesting Stockholder or such
underwriter specifically for use in the preparation thereof or (B) and corrected
in any prospectus or amendment or supplement thereto that was delivered to the
Requesting Stockholder or underwriter prior to the sale or sales of Covered
Shares in question. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Requesting
Stockholders or any such person and shall survive the transfer of such
securities by the Requesting Stockholder. BPB also shall agree to provide for
contribution as shall reasonably be requested by the Requesting Stockholders or
any underwriters in circumstances where such indemnity is held unenforceable.
(b) Each Requesting Stockholder, by virtue of exercising its
registration rights hereunder, agrees and undertakes to enter into customary
indemnification arrangements to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 8(a)) BPB, each director of BPB,
each officer of BPB who shall sign such registration statement, each person who
participates as an underwriter or a selling stockholder in the offering or sale
of such securities, each officer and director of each underwriter and selling
stockholder, and each person, if any, who controls BPB or any such underwriter
or selling stockholder within the meaning of the Securities Act, with respect to
any statement in or omission from such registration statement, any
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preliminary prospectus or final prospectus included therein, or any amendment or
supplement thereto, if such statement or omission was made in reliance upon and
in conformity with written information furnished by the Requesting Stockholder
to BPB specifically for inclusion in such registration statement or prospectus.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of BPB or any such director, officer or
controlling person and shall survive the transfer of the registered securities
by the Requesting Stockholder. Each Requesting Stockholder also shall agree to
provide for contribution as shall reasonably be requested by BPB or any
underwriters or selling stockholder in circumstances where such indemnity is
held unenforceable.
(c) Indemnification and contribution similar to that specified
in the preceding subdivisions of this Section 6 (with appropriate modifications)
shall be given by BPB and each Requesting Stockholder with respect to any
required registration or other qualification of such Covered Shares under any
federal or state law or regulation of governmental authority other than the
Securities Act.
Section 7. Benefits and Termination of Registration Rights.
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7.1 EXERCISE. Registration rights granted hereunder may only be
exercised by the Stockholders or their permitted assigns.
7.2 TERMINATION. The registration rights of any Stockholder
hereunder shall cease to apply to Covered Shares held by such Stockholder when
(a) a registration statement with respect to the sale of such Covered Shares
shall have become effective under the Securities Act and such shares shall have
been disposed of in accordance with such registration statement or (b) all such
Covered Shares are eligible to be sold pursuant to Rule 144 under the Securities
Act (or any successor provision) during any two (2) successive three (3) month
periods.
7.3 OTHER AGREEMENTS. BPB is party to that certain Stock Purchase
Agreement, dated December 2, 1996, by and between BPB and the investors named
therein and that certain Asset Purchase Agreement, dated as of June
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16, 1995, by and among BPB, Boston Private Bank & Trust Company, Xxxxxxxxxx,
Xxxxxxxxx and Xxxxx Incorporated and the stockholders of Xxxxxxxxxx, Xxxxxxxxx
and Xxxxx Incorporated, each of which agreements provide certain registration
rights with respect to shares of Common Stock held by certain parties thereto
(the "Other Registration Rights"). The rights of the Stockholders hereunder
and the obligations of BPB hereunder are expressly subject to and, to the extent
inconsistent therewith, limited by such Other Registration Rights.
Section 8. Certain Definitions.
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8.1 REGISTRATION EXPENSES. As used in this Agreement, the term
"Registration Expenses" means all expenses incident to BPB's performance of or
compliance with the registration requirements set forth in this Agreement,
including, without limitation, the following: (i) the fees, disbursements and
expenses of BPB's counsel and accountants in connection with the registration of
Covered Shares to be disposed of under the Securities Act; (ii) all expenses in
connection with the preparation, printing and filing of the registration
statement, any preliminary prospectus or final prospectus, any other offering
document and amendments and supplements thereto and the mailing and delivering
of copies thereof to the underwriters and dealers; (iii) the cost of printing
and producing any agreements among underwriters, underwriting agreements, and
blue sky or legal investment memoranda, any selling agreements and any
amendments thereto or other documents in connection with the offering, sale or
delivery of Covered Shares to be disposed of; (iv) all expenses in connection
with the qualification of Covered Shares to be disposed of for offering and sale
under state securities laws, including the fees and disbursements of counsel
for the underwriters in connection with such qualification and in connection
with any blue sky and legal investment surveys; (v) the filing fees incident to
securing any required review by the NASD of the terms of the sale of Covered
Shares to be disposed of; (vi) the costs of preparing stock certificates; (vii)
the costs and charges of BPB's transfer agent and registrar and (viii) the
reasonable fees and disbursements of one counsel for the Requesting
Stockholders.
8.2 COVERED SHARES. "Covered Shares" means the Shares and any stock
dividends or distributions made
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on the Shares from BPB (including, without limitation, as a result of a stock
split) or any securities which become convertible into or exchanged for BPB
shares in the event there is a sale of all or substantially all of the assets of
BPB, or a merger or a reorganization of BPB.
Section 9. LEGEND. Each certificate representing the Covered Shares
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be transferred
or otherwise disposed of unless they have been registered under said Act
or an exemption from registration is available."
The foregoing legend shall be removed at such time as the restrictions referred
to therein cease to be applicable.
Section 10. TERMINATION. This Agreement shall terminate on the
earlier of the date that no Stockholder owns any Covered Shares or the date that
all Covered Shares held by all Stockholders are freely saleable without
restriction under the Securities Act.
Section 11. Miscellaneous.
-------------
11.1 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and (a) with respect to
BPB, its successors and assigns and (b) with respect to the Stockholders, its
successors and permitted assigns. No Stockholder may assign any of its rights
and obligations hereunder without the prior written consent of BPB, PROVIDED
that a Stockholder may assign its rights and obligations hereunder to any trust,
limited partnership or other estate planning vehicle the sole beneficiaries or
equity holders of which shall be such Stockholder and/or one or more of a
spouse, parent, sibling, child or grandchild of such Stockholder or any
charitable trust or foundation or, without compensation, to any charitable trust
or foundation.
11.2 GOVERNING LAW; JURISDICTION. This Agreement shall be
construed, performed and enforced in accor-
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dance with, and governed by, the laws of the Commonwealth of Massachusetts
(without giving effect to the principles of conflicts of laws thereof).
11.3 SEVERABILITY. In the event that any part of this Agreement is
declared by any court or other judicial or administrative body to be null, void
or unenforceable, said provision shall survive to the extent it is not so
declared, and all of the other provisions of this Agreement shall remain in full
force and effect.
11.4 NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be sent by hand delivery,
receipt acknowledged, or by telegram, telex or facsimile transmission, to the
respective parties at the following addresses:
If to BPB:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to
Xxxxxxx, Xxxxxxx & Xxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
If to the Stockholder, at the address of record reflected upon the
books of BPB, with a copy to
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
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Any party may change its address or facsimile number for receiving
notice by written notice given to the other party. All notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given as of the earlier of (a) the date received or (b) the date receipt is
acknowledged.
11.5 RULE 144 INFORMATION. With a view to making available to the
Stockholders the benefits of Rule 144 promulgated under the Securities Act
("Rule 144") and any other rule or regulation of the SEC that may at any time
permit a Stockholder to sell Covered Shares to the public without registration,
BPB agrees to:
(a) use its reasonable best efforts to file with the SEC all
reports and other documents required of BPB to be filed pursuant to the
Securities Act or the Securities Exchange Act of 1934; and
(b) furnish to any Stockholder forthwith upon request (1) a
written statement by BPB as to its compliance with the reporting requirements of
paragraph (c)(1) Rule 144, (2) a copy of the most recent annual or quarterly
report of BPB and (3) at the Stockholder's expense, such other public,
non-confidential information as may be reasonably requested in availing any
Stockholder of any rule or regulation of the SEC which permits the selling of
any such securities without registration or pursuant to such form.
11.6 CONFIDENTIALITY. Stockholder agrees to treat as confidential
and not to disclose to any other person any information provided to Stockholder
by BPB pursuant to this Agreement that BPB notifies Stockholder is confidential.
11.7 AMENDMENTS; WAIVERS. This Agreement may be amended or modified,
and any of the terms, covenants or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case of a waiver,
by the party waiving compliance. Any waiver by any party of any condition, or of
the breach of any provision, term or covenant contained in this Agreement, in
any one or more instances, shall not be deemed to be nor construed as a
furthering or continuing waiver of any such condition, or of the breach of any
other provision, term or covenant of this Agreement.
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11.8 SECTION AND PARAGRAPH HEADINGS. The section and paragraph
headings in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
11.9 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
BOSTON PRIVATE BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and CEO
STOCKHOLDERS:
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
By: /s/ C. Xxxxxxx Xxxxxx
---------------------------------
Name: C. Xxxxxxx Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxx X. Xxxxx, Xx.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
