EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This Agreement, ("Agreement") is made and entered into as of this 9th
day of April, 2003, by and among First Federal Capital Corp, a Wisconsin
corporation (the "Company"), and Liberty Bancshares, Inc. on behalf of its
shareholders (individually a "Holder" and collectively the "Holders").
RECITALS
WHEREAS, the Company and the Holders are parties to an Agreement and
Plan of Merger dated as of April 9, 2003, (the "Merger Agreement") pursuant to
which, among other things, the Holders are acquiring shares of common stock, no
par value, of the Company ("Company Common Stock");
WHEREAS, pursuant to the Merger Agreement, the Company has agreed to
register shares of Company Common Stock to be received by the Holders (the
"Resale Registration"); and
WHEREAS, in connection with the transactions contemplated by the Merger
Agreement and pending completion of the Resale Registration, the Holders desire
to obtain certain additional registration rights with respect to Company Common
Stock to be received in the Merger (as defined in the Merger Agreement) and the
Company desires to enter into the agreements with the Holders as set forth
below.
NOW THEREFORE, the parties agree as follows:
ARTICLE I
REGISTRATION RIGHTS
Section 1.01 General. For purposes of Article I: (i) the terms
"register," "registered" and "registration" refer to a registration effected by
preparing and filing a registration statement (a "registration statement") in
compliance with the Securities Act of 1933, as amended (the "1933 Act"), and the
declaration or ordering of effectiveness of such registration statement; and
(ii) the term "Registerable Securities" means the shares of Company Common Stock
to be received by the Holders in the Merger. Capitalized terms used herein and
not defined shall have the meanings set forth in the Merger Agreement.
Section 1.02 Company Registration. Subject to Section 1.06
hereof, if at any time prior to completion of the Resale Registration the
Company determines to register any Company Common Stock under the 1933 Act in
connection with the public offering of such securities solely for cash on a form
that would also permit the registration of any of the Registerable Securities,
the Company shall promptly give the Holders written notice of such
determination. Upon the written request of any Holder received by the Company
within thirty (30) days after the giving of any such notice by the Company, the
Company shall use its best efforts to cause to be registered all of the
Registerable Securities that the Holders have requested be registered together
with the registration
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of the Company Common Stock otherwise being registered by the Company.
Notwithstanding anything else in this Agreement to the contrary, all of the
Company's obligations under this Section shall expire on the earlier of (i)
completion of the Resale Registration or (ii) the second anniversary of the date
hereof. The Company shall be obligated to include Registerable Securities in not
more than two (2) registrations pursuant to this Section 1.02. The Company may,
for any reason or for no reason, elect to either not file or withdraw the filing
of any registration statement relating to a registration described in this
Section 1.02 at any time prior to the effectiveness thereof and in such case the
request by the Holders to be included in such registration will not be deemed to
have been the exercise of one registration right under this Section 1.02.
Section 1.03 Obligations of the Company. Whenever the Company
shall be required under Section 1.02 hereof to use its best efforts to effect
the registration of any Registerable Securities, the Company shall:
(a) as expeditiously as reasonable possible, prepare and
file with the Securities and Exchange Commission ("SEC," which term includes any
successor agency) a registration statement with respect to such Registerable
Securities and use its reasonable efforts to cause such registration statement
to become and remain effective under the 1933 Act, except that the Company shall
in no event be obligated to cause any such registration to remain effective for
more than three months;
(b) as expeditiously as reasonably possible, prepare and
file with the SEC 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 1933 Act with respect to the
disposition of all securities covered by such registration statement;
(c) as expeditiously as reasonably possible, furnish to
the Holders such numbers of copies of a prospectus, including a preliminary
prospectus, and such other documents as they may reasonably request in order to
facilitate the disposition of Registerable Securities owned by them;
(d) as expeditiously as reasonably possible, use its
reasonable efforts to register and qualify the securities covered by such
registration statement under such securities or Blue Sky laws of such
jurisdictions as shall be reasonably appropriate or requested by the Holders,
except 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 jurisdiction;
(e) advise each Holder, promptly after it shall receive
notice or obtain knowledge thereof, of (i) the issuance of any stop order by the
SEC suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose, and (ii) any
similar action by any regulatory agency of competent jurisdiction under the
securities or Blue Sky laws of any jurisdiction, and in any such case promptly
use its reasonable best efforts to prevent the issuance of any stop order or the
taking of any such similar action or to obtain its withdrawal if such stop order
should be issued or any such similar action shall be taken; and
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(f) furnish to each Holder of Registerable Securities
covered by such registration statement copies of all documents proposed to be
filed with respect to any amendment or supplement to such registration statement
or prospectus at a reasonable time prior to such filing.
Section 1.04 Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Article I that the Holders shall furnish to the Company such information
regarding them, the Registerable Securities held by them, and the intended
method of disposition of such securities and such other matters as may be
required by the 1933 Act and other applicable law and regulation as the Company
shall request and as shall be required in connection with the action to be taken
by the Company.
Section 1.05 Expenses of Registration. In connection with a
registration pursuant to Section 1.02 hereof, all representation, printing and
accounting fees shall be borne by the Company, the Holders and any other sellers
pro rata in relation to the number of shares of Company Common Stock being
registered by each such party. For any registrations pursuant to Section 1.02,
all parties shall pay all of their own respective attorneys' fees.
Section 1.06 Underwriting Requirements. In connection with any
registration in which Registerable Securities are included pursuant to Section
1.02 hereof, the Company shall not be required to include any of the Holders'
Registerable Securities in such registration unless the Holders accept the terms
of the underwriting as agreed upon between the Company and the underwriters
selected by it, and then only in such quantity as will not, when added to the
shares otherwise being registered by the Company, in the written opinion of the
managing underwriters, exceed the maximum number of shares that can be marketed
at a price reasonably related to the then current market price for such shares,
or otherwise materially and adversely affect such offering or the trading market
for such shares (the "Maximum Feasible Quantity") for such registration. All
securities sold to cover any over-allotment shall be apportioned among the
Holders and the Company in proportion to the total number of shares being sold
by each; provided, however, that any such over-allotment shall first be
allocated to the Company to the extent any of the securities of the Company were
not included in such registration because the total number of Registerable
Securities included in such registration by the Holders, when added to the
shares otherwise being registered by the Company, exceeded the Maximum Feasible
Quantity for such registration, and shall thereafter be allocated to the Holders
to the extent that the Registerable Securities requested to be registered by the
Holders were not included in such registration because such shares when added to
the shares being requested by the Company, included the Maximum Feasible
Quantity for such registration.
ARTICLE II
GENERAL PROVISIONS
Section 2.01 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given (i) when delivered
personally; (ii) the second business day after being deposited in the United
States mail registered or certified (return receipt requested); (iii) the first
business day after being deposited with Federal Express or any other recognized
national overnight courier service or (iv) on the business day on which it is
sent and received by facsimile, in
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each case to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) If to the Company:
First Federal Capital Corp
000 Xxxxx Xxxxxx
Xx Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
With a copy to:
Xxxxxxx Xxxx & Friedrich
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: W. Xxxxxxx Xxxxxxx, Esq.
(b) If to the Holders:
Xxxxxx X. Xxxxxxx
Executive Vice President
Liberty State Bank
000 Xxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxxx
Xxxxxxxxx & Xxxxxx, PLLP
4200 IDS Center
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Section 2.02 Miscellaneous. This Agreement (including the
exhibits, documents and instruments referred to herein or therein):
(a) constitutes the entire agreement, and supersedes all
other prior agreements and understandings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof;
(b) is not intended to confer upon any person which is
not a party hereto any rights or remedies hereunder;
(c) shall not be assigned by operation of law or
otherwise; and
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(d) may be executed in two or more counterparts which
together shall constitute a single agreement.
Section 2.03 Waiver: Remedies. No delay or failure on the part
of any party hereto to exercise any right, power, or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party
hereto of any right, power, or privilege hereunder operate as a waiver of any
other right, power, or privilege hereunder, nor shall any single or partial
exercise of any right, power, or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power, or privilege
hereunder.
Section 2.04 Severability. If any provision of this Agreement
shall be held by any court of competent jurisdiction to be illegal, invalid or
unenforceable, such provision shall be construed and enforced as if it had been
more narrowly drawn so as not to be illegal, invalid or unenforceable, and such
illegality, invalidity or unenforceability shall have no effect upon and shall
not impair the enforceability of any other provision of this Agreement.
Section 2.05 Governing Law. This Agreement shall be construed
in accordance with the law of the State of Wisconsin (without regard to
principles of conflicts of laws) applicable to contracts made and to be
performed within such State.
FIRST FEDERAL CAPITAL CORP
By:__________________________________
LIBERTY BANCSHARES, INC.
By:__________________________________
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