EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of the 28th day of May, 2004, by Xxxxx Xxxxxxx, Xxxxxxx X. Xxxxxxx (referred
to hereinafter collectively as the "BIA Shareholders" and individually as a "BIA
Shareholder") and Peoples Bancorp Inc., an Ohio corporation ("Peoples").
RECITALS
WHEREAS, pursuant to the Agreement and Plan of Merger dated May 28,
2004 (the "Merger Agreement"), by and among Barengo Insurance Agency, Inc.
("BIA") and the BIA Shareholders and Peoples and Peoples Insurance Agency, Inc.,
an Ohio corporation ("PIAI"), BIA has merged into and become a part of PIAI (the
"Transaction");
WHEREAS, the obligations of the parties in the Merger Agreement are
conditioned upon the execution and delivery of this Agreement; and
WHEREAS, in connection with the consummation of the Transaction, the
parties desire to enter into this Agreement in order to grant registration and
other rights to the BIA Shareholders with respect to common shares, without par
value, of Peoples ("Peoples Shares") as described herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. GENERAL.
1.1 Definitions. Unless otherwise defined herein, as used in this
Agreement, the following terms shall have the following respective meanings:
(a) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(b) "Holder" means a person owning of record, or such person's
assignee, Registrable Securities that have not been sold to the public and
who does not notify Peoples in writing within ten (10) days of the date
hereof that such person does not wish such person's Registrable Securities
to be included in the Registrable Securities covered by the Registration
Statement. Unless the context requires otherwise, or unless otherwise
expressly provided, each reference to Holder shall include each BIA
Shareholder.
(c) "Prospectus" means the prospectus included in the Registration
Statement with respect to the terms of the offering of the Registrable
Securities covered by the Registration Statement, and all amendments and
supplements thereto, including any and all exhibits and annexes thereto and
any information incorporated by reference therein.
(d) "Registrable Securities" means the number of Peoples Shares
received by BIA Shareholders upon or subsequently by reason of consummation
of the Transaction and any Peoples Shares issued in respect thereof as the
result of any installment, adjustment, recapitalization, reorganization,
stock split, stock dividend or other change in Peoples' capital structure,
but excluding those shares of the Peoples Shares that have been (i)
registered under an effective registration statement under the Securities
Act and disposed of in accordance with such registration statement and the
Securities Act, or (ii) distributed to the public in accordance with Rule
144 under the Securities Act, as such rule may be amended from time to
time, or any successor rule or regulation ("Rule 144").
(e) "Rules" shall mean the rules and regulations promulgated by the
SEC under the Securities Act or under the Exchange Act.
(f) "Registration Statement" means a registration statement of Peoples
covering all of the Registrable Securities on Form S-3 or another
appropriate form under Rule 415 under the Securities Act, or any similar
Rule adopted by the SEC relating to the offer and sale of the Registrable
Securities by the Holders from time to time in accordance with the methods
of distribution elected by such Holders and set forth in such Registration
Statement, including any amendments and supplements to such registration
statement, including post-effective amendments (in each case including the
Prospectus contained therein), all exhibits thereto and all material
incorporated by reference therein.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Act" shall mean the Securities Act of 1933, as
amended.
Capitalized terms used, but not defined, herein shall have the meanings
set forth in the Agreement and Plan of Merger.
Section 2. REGISTRATION; RESTRICTIONS ON TRANSFER.
2.1 Registration Procedures and Expenses.
(a) Peoples shall:
(i) subject to receipt of information from the Holders that is
both customary and necessary, use commercially reasonable efforts to
file the Registration Statement with the SEC as soon as practicable
following the Closing Date, but in no event later than forty-five (45)
days following the Closing Date (the date of such filing with the SEC,
the "Filing Date");
(ii) not less than five (5) business days prior to the filing of
the Registration Statement with the SEC, furnish to the Holders and to
counsel for the Holders, a copy of the Registration Statement as
proposed to be filed and Peoples shall use commercially reasonable
efforts to reflect in the Registration Statement, when filed with the
SEC, such comments as the Holders and their counsel reasonably
propose;
(iii) not less than five (5) business days prior to the filing
thereof with the SEC, furnish to the Holders and to counsel for the
Holders, a copy of each amendment to the Registration Statement, and
each amendment or supplement, if any, to the Prospectus , and Peoples
shall use commercially reasonably efforts to reflect in each such
document, when filed with the SEC, such comments as the Holders and
their counsel reasonably propose;
(iv) use its commercially reasonable efforts, subject to receipt
of necessary information from the Holders, as reasonably determined
upon consultation with counsel to Peoples, to cause the Registration
Statement to become effective as soon as practicable after the Filing
Date, but in no event later than 60 days following the Filing Date,
unless under review by the SEC (the "Effective Date");
(v) use its commercially reasonable efforts to keep the
Registration Statement continuously effective under the Securities
Act, and prepare and file with the SEC such amendments to the
Registration Statement and amendments and supplements to the
Prospectus required by the Securities Act in order to permit the
Holders to use the Prospectus forming part of the Registration
Statement until the earlier of (i) the second anniversary of the
Closing Date or (ii) the date on which all of the Registrable
Securities covered by the Registration Statement have been sold
thereunder;
(vi) furnish to each Holder, without charge, as many copies of
the Registration Statement, the Prospectus (including any preliminary
prospectus), any amendment or supplement thereto, and such other
documents as such Holder may reasonably request; provided, however,
that the obligation of Peoples to deliver copies of the Prospectus,
and amendments or supplements thereto, to the Holder shall be subject
to the receipt by Peoples of reasonable assurances from such Holder
that the Holder will comply with the applicable provisions of the
Securities Act and of such other securities or blue sky laws as may be
applicable in connection with any use of such Prospectus or any
amendments or supplements thereto;
(vii) arrange, if necessary, for the registration or
qualification of the Registrable Securities under the securities or
blue sky laws of such states specified in writing by any of the
Holders and maintain such registration or qualification in effect so
long as required; provided, however, that Peoples shall not be
required to qualify to do business or consent to service of process in
any jurisdiction in which it is not then so qualified or has not so
consented;
(viii) bear all fees and expenses in connection with the
procedures in this Section 2.1 and the registration of the Registrable
Securities pursuant to the Registration Statement;
(ix) advise the Holders, promptly after it shall receive notice
or obtain knowledge of the issuance of any stop order by the SEC
delaying or suspending the effectiveness of the Registration Statement
or of the initiation of any proceeding for that purpose, and use its
commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal at the earliest possible moment if
such stop order should be issued;
(x) advise the Holders promptly after it shall receive notice or
obtain knowledge of the issuance of any suspension of the registration
or qualification of the Registrable Securities for sale in any
jurisdiction or of the initiation of any proceeding for that purpose,
and use its commercially reasonable efforts to prevent such event or
to obtain reinstatement of the registration or qualification of the
Registrable Securities at the earliest possible moment if such event
occurs; and
(xi) ensure that the Registration Statement and any amendment or
supplement thereto and any Prospectus forming part thereof, and any
amendment or supplement thereto (i) complies with the applicable
requirements of the Securities Act and (ii) does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) With a view to making available to the Holders the benefits of
Rule 144 and any other Rule that may at any time permit the Holders to sell
Registrable Securities to the public without registration, Peoples
covenants and agrees to: (i) make and keep public information available, as
those terms are understood and defined in Rule 144, until the earlier of
(A) such date as all of the Registrable Securities may be resold pursuant
to Rule 144(k) or any other Rule of similar effect or (B) such date as all
of the Holders' Registrable Securities shall have been resold; (ii) file
with the SEC in a timely manner all reports and other documents required of
Peoples under the Securities Act and under the Exchange Act; (iii) furnish
to any Holder upon request, as long as such Holder owns any Registrable
Securities, (A) a written statement by Peoples that it has complied with
the reporting requirements of the Securities Act and the Exchange Act, (B)
a copy of Peoples' most recent Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, and (C) such other information as may be reasonably
requested in order to avail such Holder of any Rule that permits the
selling of any such Registrable Securities without registration; and (iv)
subject to the conditions set forth in this Agreement, and provided the
conditions of Rule 144(k) are satisfied in all respects, including without
limitation, that such Holder is not an Affiliate of Peoples, as such term
is defined in Rule 144, use commercially reasonable efforts to cause the
removal of any restrictive legends on the Registrable Securities necessary
to enable such Holder to sell the Registrable Securities under Rule 144(k).
(c) It shall be a condition precedent to the obligations of Peoples to
take any action pursuant to this Section 2.1 that any Holder shall furnish
to Peoples, pursuant to the written request by Peoples, such information
regarding the Holder, the Registrable Securities to be sold by the Holder
and the intended method of disposition of such Registrable Securities as
shall be required to effect the registration of the Registrable Securities.
2.2 Suspension.
(a) Each Holder agrees that such Holder will promptly notify Peoples
of any changes in the information set forth in the Registration Statement
regarding the Holder or the Holder's plan of distribution.
(b) Except in the event that paragraph (c) below applies, Peoples
shall: (i) if deemed necessary by Peoples, prepare and file from time to
time with the SEC a post-effective amendment to the Registration Statement
or a supplement to the Prospectus forming a part thereof or a supplement or
amendment to any document incorporated therein by reference or file any
other required document so that such Registration Statement will not
contain 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 not misleading, and so that, as thereafter delivered to purchasers
of the Registrable Securities being sold thereunder, such Prospectus,
Supplement or amendment will not contain 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 were made, not misleading and (ii) promptly inform each
Holder that Peoples has complied with its obligations in Section 2.2(b)(i)
(or that, if Peoples has filed a post-effective amendment to the
Registration Statement which has not yet been declared effective, Peoples
will notify each Holder to that effect, will use its commercially
reasonable efforts to secure the effectiveness of such post-effective
amendment as promptly as possible and will promptly notify each Holder
pursuant to Section 2.2(b)(i) hereof when the amendment has become
effective).
(c) Subject to paragraph (d) below, in the event: (i) of any request
by the SEC or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement for amendments or
supplements to the Registration Statement or related Prospectus or for
additional information; (ii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose; (iii) of the receipt by Peoples of any
notification with respect to the suspension of the registration or
qualification or exemption from registration or qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose; or (iv) of any material event or
circumstance which, in the reasonable judgment of Peoples, necessitates the
making of any changes in the Registration Statement or Prospectus, or any
document incorporated or deemed to be incorporated therein by reference, so
that, in the case of the Registration Statement, it will not contain any
untrue statement of a material fact or any omission to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; then Peoples shall deliver a certificate in writing
to each Holder (the "Suspension Notice") to the effect of the foregoing
and, upon receipt of such Suspension Notice, each Holder will refrain from
selling any Registrable Securities pursuant to the Registration Statement
(a "Suspension") until such Holder's receipt of copies of a supplemented or
amended Prospectus prepared and filed by Peoples, or until it is advised in
writing by Peoples that any stop order suspending the effectiveness of the
Registration Statement has been withdrawn, that the registration or
qualification of the Registrable Securities has been reinstated in such
jurisdiction or that the current Prospectus may be used, as appropriate,
and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in any such Prospectus. In
the event of any Suspension, Peoples will use its commercially reasonable
efforts to cause the use of the Prospectus so suspended to be resumed as
soon as reasonably practicable, and in no event later than 20 business
days, after delivery of a Suspension Notice to each Holder.
(d) Notwithstanding the foregoing paragraphs of this Section 2.2, the
Holders shall not be prohibited from selling Registrable Securities under
the Registration Statement as a result of Suspensions on more than two
occasions of not more than sixty (60) days each in any twelve (12) month
period, unless, in the good faith judgment of Peoples' Board of Directors,
upon advice of counsel, the sale of Registrable Securities under the
Registration Statement in reliance on this paragraph 2.2(d) would be
reasonably likely to cause a violation of the Securities Act or the
Exchange Act and result in potential liability to Peoples.
(e) Provided that a Suspension is not then in effect, any Holder may
sell Registrable Securities under the Registration Statement, provided that
such Holder arranges for delivery of a current Prospectus to the transferee
of such Registrable Securities.
(f) In the event of a sale of Registrable Securities by any Holder,
such Holder must also deliver to Peoples' transfer agent, with a copy to
Peoples, a Certificate of Subsequent Sale substantially in the form
attached hereto as Exhibit A, so that Peoples Shares may be properly
transferred.
2.3 Indemnification.
(a) For the purpose of this Section 2.3, the term "Untrue Statement"
shall include any untrue statement or alleged untrue statement, or any
omission or alleged omission to state in the Registration Statement or the
Prospectus a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(b) Peoples agrees to indemnify and hold harmless each Holder from and
against any losses, claims, damages or liabilities to which such Holder may
become subject (under the Securities Act or otherwise) insofar as such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon (i) any Untrue Statement
contained in the Registration Statement as originally filed or in any
amendment thereof, including any Untrue Statement in the Prospectus or in
any amendment thereof, supplement thereto, or document incorporated by
reference therein, or (ii) any failure by Peoples to fulfill any
undertaking of Peoples included in this Agreement or the Registration
Statement (including the Prospectus), and Peoples will reimburse such
Holder for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding
or claim, provided, however, that Peoples shall not be liable in any such
case to the extent that such loss, claim, damage or liability arises out
of, or is based upon, an Untrue Statement made in such Registration
Statement (including the Prospectus) in reliance upon and in conformity
with written information furnished to Peoples by or on behalf of any such
Holder specifically for inclusion in the Registration Statement, the
failure of such Holder to comply with its covenants and agreements
contained in Section 2.2 hereof, or any statement or omission in the
Prospectus that is corrected in any amendment or supplement thereto that
was timely delivered to a Holder by Peoples in accordance with this
Agreement and prior to the pertinent sale or sales by such Holder.
(c) Each Holder agrees to indemnify and hold harmless the other
Holders and Peoples (and each person, if any, who controls Peoples within
the meaning of Section 15 of the Securities Act, each officer of Peoples
who signs the Registration Statement and each director of Peoples) from and
against any losses, claims, damages or liabilities to which the other
Holders or Peoples (or any such officer, director or controlling person of
Peoples) may become subject (under the Securities Act or otherwise) insofar
as such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of, or are based upon, (A) any failure of
such Holder to comply with its covenants and agreements contained in
Section 2.2 hereof, or (B) any Untrue Statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof, including any Untrue Statement in the Prospectus or in
any amendment thereof or supplement thereto, if such Untrue Statement was
made in reliance upon and in conformity with written information furnished
by or on behalf of such Holder specifically for inclusion in the
Registration Statement, and such Holder will reimburse the other Holders
and Peoples (or such officer, director or controlling person of Peoples),
as the case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding
or claim.
(d) Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action or proceeding in respect of which
indemnity is to be sought against an indemnifying person pursuant to this
Section 2.3, such indemnified person shall notify the indemnifying person
in writing of such claim or of the commencement of such action or
proceeding, but the omission to so notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
under this Section 2.3 (except to the extent that such omission materially
and adversely affects the indemnifying party's ability to defend such
claim, action or proceeding) or from any liability otherwise than under
this Section 2.3. Subject to the provisions hereinafter stated, in case any
such action or proceeding shall be brought against an indemnified person,
the indemnifying person shall be entitled to participate therein, and, to
the extent that it shall elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, shall be entitled to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified person. After notice
from the indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be liable to
such indemnified person for any legal expenses subsequently incurred by
such indemnified person in connection with the defense thereof, provided,
however, that if there shall exist a conflict of interest that would make
it inappropriate, in the reasonable opinion of counsel to the indemnified
person, for the same counsel to represent both the indemnified person and
such indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at the
expense of such indemnifying person; provided, however, that no
indemnifying person shall be responsible for the fees and expenses of more
than one counsel (in addition to appropriate local counsel) for all
indemnified parties. In no event shall any indemnifying person be liable in
respect of any amounts paid in settlement of any action or proceeding
unless the indemnifying person shall have approved the terms of such
settlement; provided that such consent shall not be unreasonably withheld
or delayed. No indemnifying person shall, without the prior written consent
of the indemnified person, effect any settlement of any pending or
threatened action or proceeding in respect of which any indemnified person
is or could have been a party and indemnification could have been sought
hereunder by such indemnified person, unless such settlement includes an
unconditional release of such indemnified person from all liability on
claims that are the subject matter of such action or proceeding.
(e) If the indemnification provided for in this Section 2.3 is
unavailable to or insufficient to hold harmless an indemnified person under
subsection (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative fault of Peoples
on the one hand and the Holders on the other in connection with the
statements or omissions or other matters which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, in
the case of an Untrue Statement, whether the Untrue Statement relates to
information supplied by Peoples on the one hand or a Holder on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such Untrue Statement. Peoples and the
Holders agree that it would not be just and equitable if contribution
pursuant to this subsection (e) were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable
considerations referred to above in this subsection (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred to
above in this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Holder shall be required to
contribute any amount in excess of the amount by which the gross amount
received by such Holder from the sale of such Holder's Registrable
Securities to which such loss relates exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of such
Untrue Statement. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations in this subsection to
contribute are several in proportion to their sales of Registrable
Securities to which such loss relates and not joint.
(f) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including, without limitation,
the provisions of this Section 2.3, and are fully informed regarding said
provisions. They further acknowledge that the provisions of this Section
2.3 fairly allocate the risks in light of the ability of the parties to
investigate Peoples and its business in order to assure that adequate
disclosure is made in the Registration Statement as required by the
Securities Act and the Exchange Act. The parties are advised that federal
or state public policy as interpreted by the courts in certain
jurisdictions may be contrary to certain of the provisions of this Section
2.3.
2.4 Termination of Conditions and Obligations. The restrictions
imposed by Section 2.6 upon the transferability of the Registrable
Securities shall cease and terminate as to any particular number of the
Registrable Securities when an opinion of counsel reasonably satisfactory
to Peoples shall have been rendered to the effect that such conditions are
not necessary in order to comply with the Securities Act. [Note: Shares
sold under the Registration Statement do not fall within the definition of
Registrable Securities]
2.5 Information Available. So long as the Registration Statement is
effective covering the resale of Registrable Securities owned by any
Holder, Peoples:
(g) will furnish to each Holder, as soon as practicable after it
is available, one copy of (i) its annual report to shareholders (which
annual report shall contain financial statements audited in accordance
with generally accepted accounting principles in the United States by
a national firm of certified public accountants registered with the
Public Company Accounting Oversight Board) and (ii) if not included in
substance in the annual report to shareholders, its Annual Report on
Form 10-K (the foregoing, in each case, excluding exhibits);
(h) will furnish to each Holder, upon the request of the Holder,
all exhibits to the documents referred to in Section 2.5(a) filed with
the SEC and all other information that is made available to
shareholders; and
(i) upon the reasonable request of any Holder, will meet with
such Holder or a representative thereof at Peoples' headquarters to
discuss all information relevant for disclosure in the Registration
Statement and will otherwise cooperate with any Holder conducting an
investigation for the purpose of reducing or eliminating such Holder's
exposure to liability under the Securities Act, including the
reasonable production of information at Peoples' headquarters;
provided, that Peoples shall not be required to disclose any
confidential information to or meet at its headquarters with any
Holder until and unless such Holder shall have entered into a
confidentiality agreement in form and substance reasonably
satisfactory to Peoples with Peoples with respect thereto.
2.6 Restrictions on Transfer.
(j) Each Holder agrees not to make any disposition of all or any
portion of the Registrable Securities unless and until:
(i) The Registration Statement is declared effective under
the Securities Act and such disposition is made in accordance
with the Registration Statement; or
(ii) (A) the transferee has agreed in writing to be bound by
the terms of this Agreement, (B) such Holder shall have notified
Peoples of the proposed disposition and shall have furnished
Peoples with a detailed statement of the circumstances
surrounding the proposed disposition, and (C) if reasonably
requested by Peoples, such Holder shall have furnished Peoples
with an opinion of counsel, reasonably satisfactory to Peoples,
that such disposition will not require registration of such
Registrable Securities under the Securities Act. It is agreed
that Peoples will not require opinions of counsel for
transactions made pursuant to Rule 144, except in unusual
circumstances.
(k) Notwithstanding the provisions of subsection (a) above, no
such restriction shall apply to a transfer by any Holder transferring
the Holder's Registrable Securities to an individual Holder's family
member or a trust, partnership or limited liability company for the
benefit of an individual Holder or such Holder's family member;
provided that in each case the transferee will agree in writing to be
subject to the terms of this Agreement to the same extent as if the
transferee was an original Holder hereunder.
(l) Each certificate representing Registrable Securities shall be
stamped or otherwise imprinted with legends substantially similar to
the following (in addition to any legend required under applicable
state securities laws):
THE COMMON SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS PEOPLES BANCORP INC. (THE
"COMPANY") HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SALE, PLEDGE, ASSIGNMENT, HYPOTHECATION OR TRANSFER OF THE COMMON
SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS OF A CERTAIN REGISTRATION rights agreement, DATED may 28,
2004, to which the SHAREholder and the company are parties. Copies of
such agreement may be obtained upon written request to the secretary
of the company.
(m) Peoples shall be obligated to reissue promptly unlegended
certificates at the request of any Holder thereof if Peoples has
completed the registration contemplated by this Agreement.
(n) Any legend endorsed on a certificate pursuant to applicable
state securities laws and the stop-transfer instructions with respect
to such Registrable Securities shall be removed upon receipt by
Peoples of an order of the appropriate blue sky authority evidencing
that such legend is no longer required.
2.7 Furnishing Information. It shall be a condition precedent to the
obligations of Peoples to take any action pursuant to Section 2.2 that all
selling Holders shall furnish to Peoples such information regarding
themselves, the Registrable Securities held by them and the intended method
of disposition of such Registrable Securities as shall be required to
effect the registration of their Registrable Securities.
2.8 Assignment of Registration Rights. The rights to cause Peoples to
register Registrable Securities pursuant to this Agreement may not be
assigned by a Holder, except in connection with a transfer of Registrable
Securities permitted under Section 2.6(b).
2.9 Agreement to Furnish Information. If requested by Peoples, each
Holder shall provide, within ten (10) days of such request, such
information as may be required by Peoples in connection with the completion
of any public offering of Peoples' securities pursuant to a registration
statement filed under the Securities Act. The obligations described in this
Section 2.9 shall not apply to a Special Registration Statement. Each
Holder agrees that any transferee of any Registrable Securities shall be
bound by this Section 2.9.
Section 3. MISCELLANEOUS.
3.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Ohio as applied to agreements among Ohio
residents entered into and to be performed entirely within Ohio.
3.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Registrable Securities from time to time.
3.3 Entire Agreement. This Agreement, the Exhibits hereto, the
Agreement and Plan of Merger and the other documents delivered pursuant
thereto constitute the full and entire understanding and agreement among
the parties with regard to the subjects hereof.
3.4 Severability. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions of this Agreement,
and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
3.5 Amendment and Waiver.
(a) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of Peoples and the
Holders of at least a majority of the Registrable Securities.
(b) Except as otherwise expressly provided, the obligations of
Peoples and the rights of the Holders under this Agreement may be
waived only with the written consent of the Holders of at least a
majority of the Registrable Securities.
(c) For the purposes of determining the number of Holders
entitled to vote or exercise any rights hereunder, Peoples shall be
entitled to rely solely on the list of record holders of its Peoples
Shares common stock as maintained by or on behalf of Peoples.
(d) Any amendment or waiver effected in accordance with this
Section 3.5 shall be binding upon each Holder and Peoples. By
accepting the benefits conferred under this Agreement, the Holders
hereby agree to be bound by the provisions of this Section 3.5.
3.6 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any
breach, default or noncompliance of Peoples under this Agreement shall
impair any such right, power, or remedy, nor shall it be construed to be a
waiver of any such breach, default or noncompliance, or any acquiescence
therein, or of any similar breach, default or noncompliance thereafter
occurring. It is further agreed that any waiver, permit, consent, or
approval of any kind or character on any Holder's part of any breach,
default or noncompliance under this Agreement or any waiver on such
Holder's part of any provisions or conditions of this Agreement must be in
writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement, by law, or
otherwise afforded to Holders, shall be cumulative and not alternative.
3.7 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery
to the party to be notified, (b) when sent by confirmed electronic mail or
facsimile if sent during normal business hours of the recipient; if not,
then on the next business day, (c) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or
(d) one (1) day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the party to be notified at
the address as set forth on the signature pages hereof or Exhibit B hereto
or at such other address as such party may designate by ten (10) days
advance written notice to the other parties hereto.
3.8 Attorneys' Fees. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the prevailing party
in such dispute shall be entitled to recover from the losing party all
fees, costs and expenses of enforcing any right of such prevailing party
under or with respect to this Agreement, including without limitation, such
reasonable fees and expenses of attorneys and accountants, which shall
include, without limitation, all fees, costs and expenses of appeals.
3.9 Titles and Subtitles. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
3.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of the date set forth in the first paragraph hereof.
Peoples Bancorp Inc. /s/ Xxxxx Xxxxxxx
----------------------
Xxxxx Xxxxxxx
By: /s/ Xxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
--------------- -----------------------
Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Its: Chief Operating Officer
EXHIBIT A
CERTIFICATE OF SUBSEQUENT SALE
[Date]
Registrar and Transfer Company
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Re: Sale of Common Share of Peoples Bancorp Inc. (the "Company") pursuant to
the Company's Prospectus dated ________________, (the "Prospectus")
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of Common Shares
of the Company included in the table of Selling Shareholders in the Prospectus,
that the undersigned has sold the Common Shares pursuant to the Prospectus and
in a manner described under the caption "Plan of Distribution" in the Prospectus
and that such sale complies with all applicable securities laws, including,
without limitation, the Prospectus delivery requirements of the Securities Act
of 1933, as amended.
Selling Shareholder(s) [the beneficial owner(s)]:______________________
_______________________________________________________________________
Record Holder(s) [e.g, if held in name of nominee(s)]: ________________
_______________________________________________________________________
Restricted Stock Certificate No.(s): __________________________________
Number of Common Shares Sold: _________________________________________
Date of Sale: _________________________________________________________
In the event you receive a stock certificate(s) representing more Common Shares
than have been sold by the undersigned, then you should return to the
undersigned a new issued certificate for such excess Common Shares in the name
of the Record Holder.
Very truly yours,
____________________________
[Signature]
cc: Xxxxxxx X. Xxxxxxxx, General Counsel
Peoples Bancorp Inc.
EXHIBIT B
Barengo Shareholders
Xxxxx Xxxxxxx 000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Xxxxxxx X. Xxxxxxx 00 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
