EXHIBIT B
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:
1. Effectiveness of Registration Rights. The registration rights granted
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pursuant to Sections 2 and 3 hereof shall be effective as of the closing of
the transactions contemplated by the Merger Agreement.
2. Demand Registration.
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a. Notice and Registration. At any time and from time to time after the
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effectiveness of this Agreement, subject to the terms and conditions
set forth herein, 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 intended
method or methods of disposition stated in such request, provided
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that:
i. 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;
ii. 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 necessary to reduce the aggregate
number of Covered Shares to be registered in response to such
request to not less than 800,000 Covered Shares;
iii. 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
required 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;
iv. 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,
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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 Blackout;
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v. 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 disclosed 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
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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
vi. 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.
b. Registration Expenses. BPB (as between BPB and the Requesting
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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.
c. Third Person and Company Shares. BPB shall have the right to cause
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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
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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.
d. Financial Information. Notwithstanding anything to the contrary
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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
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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 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.
e. Additional Demand Right. In the event that in any two consecutive
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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 underwritten 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.
3. Piggyback Registration.
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a. Notice and Registration. If at any time or from time to time after
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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 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
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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:
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i. 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;
ii. 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 Requesting
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
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
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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 Stockholder for
inclusion in such
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registration from such registration by notice to BPB within 5
days after receipt of BPB's notice; and
iii. 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.
b. Registration Expenses. BPB (as between BPB and the Requesting
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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.
4. Registration Procedures.
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a. Registration and Qualification. If and whenever BPB is required to
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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:
i. 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;
ii. 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;
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iii. 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;
iv. 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;
v. immediately notify each Requesting Stockholder (i) of the time
any registration statement 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
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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
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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. Each Stockholder hereby agrees to promptly notify
BPB of any changes in the information provided to BPB; and
vi. 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.
b. Underwriting.
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i. 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.
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ii. 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
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.
iii. 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.
iv. 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.
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c. Blackout Periods.
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i. 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:
(1) 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
(2) 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
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any underwritten public offering.
ii. 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.
d. Listing. In connection with the registration of any offering of
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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.
5. Preparation; Reasonable Investigation. In connection with the preparation
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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.
6. Indemnification and Contribution.
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i. 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 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
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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.
ii. 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 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.
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iii. 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.
7. Benefits and Termination of Registration Rights.
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a. Exercise. Registration rights granted hereunder may only be exercised
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by the Stockholders or their permitted assigns.
b. Termination. The registration rights of any Stockholder hereunder
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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.
c. Other Agreements. BPB is party to that certain Stock Purchase
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Agreement, dated December 2, 1996, by and between BPB and the
investors named therein and that certain Asset Purchase Agreement,
dated as of June 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.
8. Certain Definitions.
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a. Registration Expenses. As used in this Agreement, the term
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"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
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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.
b. Covered Shares. "Covered Shares" means the Shares and any stock
--------------
dividends or distributions made 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.
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.
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.
11. Miscellaneous.
-------------
a. 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
-14-
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.
b. Governing Law; Jurisdiction. This Agreement shall be construed,
---------------------------
performed and enforced in accordance with, and governed by, the laws
of the Commonwealth of Massachusetts (without giving effect to the
principles of conflicts of laws thereof).
c. 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.
d. 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.
e. 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:
i. 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
ii. 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.
f. 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.
g. 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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h. 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.
i. 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
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