FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit
4.2
FORM
OF
This REGISTRATION RIGHTS AGREEMENT
(this “Agreement”) is made
as of ______________, 2009, by and among First-Mid Illinois Bancshares, Inc., a
Delaware corporation (the “Corporation”), and
the persons who have executed the signature page hereto (the “Preferred
Shareholders”). Capitalized terms used and not otherwise
defined in this Agreement have the meanings that Section 7
assigns to those terms.
NOW, THEREFORE, in consideration of the
mutual covenants contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Piggyback
Registrations.
(a) Right to
Piggyback. Whenever the Corporation proposes to register any
of its Common Stock for sale under the Securities Act and the registration form
to be used may be used for the registration of a public offering of Shares (a
“Piggyback Registration”), the Corporation will give prompt written notice to
all holders of Shares of its intention to effect such a registration and will
include in such registration all Shares with respect to which the Corporation
has received written requests for inclusion in such registration within 20 days
after the receipt of the Corporation’s notice.
(b) Piggyback
Expenses. The Registration Expenses of the Corporation and of
the holders of Shares will be paid by the Corporation in all Piggyback
Registrations.
(c) Priority on Primary
Registrations. If a Piggyback Registration is in part an
underwritten primary registration on behalf of the Corporation, and not an
offering described in Section 1(d), and the managing underwriters advise the
Corporation in writing that in their opinion the number of shares of Common
Stock requested to be included in such registration exceeds the number that can
be sold in such offering without adversely affecting the marketability of the
offering, the Corporation will include in such registration (i) first, the number of shares
of Common Stock the Corporation proposes to sell in such registration; and (ii)
second, the number of
Shares and other shares of Common Stock requested to be included in such
registration pursuant to contractual obligations of the Corporation, pro rata among the respective
holders of such Shares or such other Common Stock on the basis of the number of
Shares or shares of such other Common Stock owned by each such holder, in each
case, up to the aggregate number of shares of Common Stock that in the opinion
of such managing underwriters can be sold without adversely affecting the
Corporation or the marketability of such offering.
(d) Priority on Secondary
Registrations. If a Piggyback Registration is solely an
underwritten secondary registration on behalf of holders of Common Stock (other
than Shares) who have the contractual right to initiate such a registration, and
the managing underwriters advise the Corporation in writing that in their
opinion the number of shares of Common Stock requested to be included in such
registration exceeds the number that can be sold in such offering without
adversely affecting the Corporation or the marketability of the offering, the
Corporation will include in such registration (i) first, the number of shares
of Common Stock (other than Shares) requested to be included in such offering by
the holders initially requesting such registration pursuant to such contractual
rights, to the extent such holders have the contractual right to have such
shares included in such registration prior to Shares; (ii) second, the number of shares
of Common Stock the Corporation proposes to sell in such registration; and
(iii) third, the
number of Shares requested to be included in such registration, pro rata among the respective
holders thereof on the basis of the number of Shares requested by them to be
included in such registration, in each case, up to the aggregate number of
shares of Common Stock that in the opinion of such managing underwriters can be
sold without adversely affecting the Corporation or the marketability of such
offering.
(e) Selection of
Underwriters. If any Piggyback Registration is an underwritten
offering, the Corporation will be entitled to select the managing
underwriter(s).
(f) Other
Registrations. If the Corporation has previously filed a
registration statement with respect to Shares pursuant to this Section 1,
and if such previous registration has not been withdrawn or abandoned, the
Corporation will not file or cause to be effected any other registration of any
of its equity securities or securities convertible or exchangeable into or
exercisable for its equity securities under the Securities Act (except on Form
S-4 or Form S-8 or any successor forms), whether on its own behalf or at the
request of any holder or holders of such securities, until a period of at least
one hundred eighty (180) days has elapsed from the date such previous
registration became effective.
2. Holdback
Agreements. Notwithstanding anything to the contrary contained
in this Agreement, neither the Corporation nor any holder of Shares will effect
any public sale or distribution of the Corporation’s equity securities during
the seven days prior to or during the period of 90 days (or such shorter period
as the Corporation may agree for the holders of Shares) beginning on the
effective date of any underwritten Piggyback Registration (except as
part of such underwritten registration or pursuant to registrations on Form S-8
or any successor form), unless the underwriter(s) managing such underwritten
registration otherwise agree. Notwithstanding anything in this Section 2 to the
contrary, no holder of Shares will be released from the restrictions on public
sale and distributions contained in this Section 2 unless all holders of Shares
are so released.
3. Registration
Procedures. Whenever the holders of Shares have requested that
any Shares be registered pursuant to this Agreement, the Corporation will,
subject to the provisions of Section 6, use its commercially reasonable
efforts to effect the registration and the sale of such Shares in accordance
with the intended method of disposition thereof, and pursuant thereto the
Corporation will as expeditiously as possible:
(a) prepare
and file with the Securities and Exchange Commission a registration statement
with respect to such Shares and use its commercially reasonable efforts to cause
such registration statement to become effective;
(b) notify
each holder of Shares included in such registration of the effectiveness of such
registration statement and prepare and file with the Securities and Exchange
Commission 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 for the earlier of (i) a period of not less
than two years and (ii) the date as of which there are no longer any shares
covered by such registration statements that are Shares, in each case in order
to comply with the provisions of the Securities Act with respect to the
disposition of all shares of Common Stock covered by such registration
statement;
(c) furnish
to each seller of Shares such number of copies of such registration statement,
each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus), exhibits, and
such other documents as such seller and underwriter, if any, may reasonably
request in order to facilitate the disposition of the Shares owned by such
seller in accordance with the procedures described therein;
(d) use its
best efforts to register or qualify such Shares under such other securities or
blue sky laws of such jurisdictions as any seller and underwriter reasonably
requests and do any and all other acts and things that may be reasonably
necessary or advisable to enable such seller and underwriter to consummate the
disposition in such jurisdictions of the Shares owned by such seller (provided
that the Corporation will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify
each seller of such Shares, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact necessary to
make the statements in such prospectus not misleading and, at the request of any
such seller, promptly prepare and file a supplement or amendment to such
prospectus and/or registration statement so that, as thereafter delivered to the
purchasers of such Shares, such prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements in such prospectus not misleading;
(f) cause all
such Shares to be listed on each securities exchange on which similar securities
issued by the Corporation are then listed;
(g) provide a
transfer agent and registrar for all such Shares not later than the effective
date of the first registration statement relating to Shares;
(h) enter
into such customary agreements (including underwriting agreements in customary
form) and take all such other actions as the holders of a majority of the Shares
reasonably request in order to expedite or facilitate the disposition of the
Shares requested to be included in such offering (including effecting a stock
split or a combination of shares);
(i) make
available for inspection by any seller of Shares, any underwriter participating
in any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Corporation, and cause the Corporation’s officers, directors, employees and
independent accountants to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) in the
event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any securities included in
such registration statement for sale in any jurisdiction, use its commercially
reasonable efforts to obtain promptly the withdrawal of such order;
(k) use its
commercially reasonable efforts to cause its management to participate fully in
the sale process relating to such offering, including the preparation of the
applicable registration statement and the preparation and presentation of any
“road shows,” whether domestic or international;
(l) use its
commercially reasonable efforts to cause all Shares covered by the applicable
registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers of such Shares to consummate the disposition of such Shares in
accordance with the procedures set forth in such registration
statement;
(m) furnish
to each seller of Shares a signed counterpart addressed to such seller and the
underwriters, if any, of:
(i)
an
opinion of counsel for the Corporation (in customary form), dated the effective
date of such registration statement (and, if such registration relates to an
underwritten public offering, an opinion dated the date of the closing under the
underwriting agreement), covering such matters as the sellers may reasonably
request, and
(ii)
a
“comfort” letter, dated the effective date of such registration statement (and,
if such registration relates to an underwritten public offering, a letter dated
the date of the closing under the underwriting agreement), signed by the
independent public accountants who have certified the Corporation’s financial
statements included in such registration statement, covering substantially the
same matters with respect to such registration statement (and the prospectus
included in such registration statement) and, in the case of the 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 delivered to the underwriters in underwritten public
offerings of securities;
(n) notify
the holders of Shares and the managing underwriter or underwriters, if any,
promptly and confirm such advice in writing promptly thereafter:
(i)
when the
registration statement, the prospectus or any prospectus supplement related to
such registration statement or any post-effective amendment to such registration
statement has been filed, and, with respect to such registration statement or
any post-effective amendment to such registration statement, when the same has
become effective;
(ii)
of any
request by the Securities and Exchange Commission for amendments or supplements
to the registration statement or the prospectus or for additional
information;
(iii) of the
issuance by the Securities and Exchange Commission of any stop order suspending
the effectiveness of the registration or the initiation of any proceedings by
any Person for that purpose; and
(iv) of the
receipt by the Corporation of any notification with respect to the suspension of
the qualification of any Shares for sale under the securities or blue sky laws
of any jurisdiction or the initiation or threat of any proceeding for such
purpose;
(o) at least
five days before filing a registration statement or prospectus and as promptly
as practicable prior to filing any amendments or supplements thereto, furnish to
legal counsel representing the holders of the Shares covered by such
registration statement copies of all such documents proposed to be
filed;
(p) use
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of a registration statement filed in connection herewith, or
the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Shares for sale in any jurisdiction, at the
earliest possible moment;
(q) cooperate
with each holder of Shares covered by the applicable registration statement and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Shares to be sold, which certificates will
not bear any restrictive legends and will be in a form eligible for deposit with
the transfer agent for the Common Stock, and enable such Shares to be in such
denominations and registered in such names as the managing underwriters, if any,
or holders may request at least two business days prior to any sale of Shares;
and
(r) use its
commercially reasonable efforts to provide a CUSIP number for the Shares, not
later than the effective date of such registration.
Each
holder of Shares who is an officer or employee of the Corporation agrees that if
and for so long as such holder serves as an officer of the Corporation or is
employed by the Corporation, such holder will participate fully in the sale
process relating to such offering, including the preparation of the related
registration statement and the preparation and presentation of any related road
shows. Any holder of Shares requested to be included in such offering
may withdraw any or all of such Shares from such offering by written notice to
the Corporation to that effect (whereupon such withdrawn Shares will no longer
be considered to have been requested to be included in such offering), and no
such withdrawal will adversely affect the rights of any holder of Shares
requested to be included in such offering.
4. Registration
Expenses.
(a) All
expenses incidental to the Corporation’s performance of or compliance with this
Agreement, including all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Corporation and all independent certified
public accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Corporation (all such expenses being herein called
“Registration Expenses”), will be borne by the Corporation, and the Corporation
will pay its internal expenses (including all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Corporation are
then listed.
(b) In
connection with each Piggyback Registration, the Corporation will reimburse the
holders of Shares included in such registration for the reasonable fees and
disbursements of one law firm chosen by the holders of a majority of the
Shares.
5. Indemnification.
(a) The
Corporation agrees to indemnify, to the extent permitted by law, each holder of
Shares, such holder’s officers and directors and each Person who controls such
holder (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities and expenses caused by any untrue or alleged untrue
statement of material fact contained in any registration statement, prospectus
or preliminary prospectus, or any document incorporated by reference thereto, or
any amendment of such registration statement or supplement to such registration
statement, or any document incorporated by reference thereto, or any omission or
alleged omission of a material fact required to be stated in such registration
statement or necessary to make the statements in such registration statement, or
any document incorporated by reference thereto, not misleading, except insofar
as the same are caused by or contained in any information furnished in writing
to the Corporation by such holder expressly for use in such registration
statement or by such holder’s failure to deliver to the purchaser a copy of the
related registration statement or prospectus or any amendments or
supplements to such registration statement after the Corporation has furnished
such holder with copies of the same, in each case to the extent that such
document was required to be delivered and the damages, liabilities or expenses
are caused by a failure to deliver such document. In connection with
an underwritten offering, the Corporation will indemnify such underwriters,
their officers and directors and each Person who controls such underwriters
(within the meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of the holders of Shares.
(b) In
connection with any registration in which a holder of Shares is participating,
each such holder will furnish to the Corporation in writing such information and
affidavits as the Corporation reasonably requests for use in connection with any
related registration statement or prospectus and, to the extent permitted by
law, will indemnify the Corporation, its directors and officers and each Person
who controls the Corporation (within the meaning of the Securities Act) against
any losses, claims, damages, liabilities and expenses resulting from any untrue
or alleged untrue statement of material fact contained in any such registration
statement, prospectus or preliminary prospectus or any amendment of such
registration statement or supplement to such registration statement or any
omission or alleged omission of a material fact required to be stated in such
registration statement or necessary to make the statements in such registration
statement not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder or on such holder’s behalf, in such holder’s capacity as a holder of
Shares and not in such holder’s capacity as a director or officer of the
Corporation, if applicable, expressly for use therein; provided that the
obligation to indemnify will be individual, not joint and several, for each
holder and will be limited to the net amount of proceeds received by such holder
from the sale of Shares pursuant to the registration statement, prospectus or
amendment upon which the claim for indemnification is based.
(c) Any
Person entitled to indemnification under this Section 5 will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give prompt notice will not
impair any Person’s right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party’s reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one law firm for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such claim.
(d) The
indemnification provided for under this Agreement will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling Person of such indemnified party
and will survive the transfer of securities and the termination of this
Agreement. No indemnifying party, in the defense of any such claim or
litigation, will, except with the consent of any indemnified party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term of such settlement a requirement that the claimant or
plaintiff give to such indemnified party a release from all liability in respect
to such claim or litigation.
(e) If the
indemnification provided for in this Section 5 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to
any losses, claims, damages or liabilities referred to in this Agreement, each
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
will, to the extent permitted by applicable law, contribute to the amount paid
or payable by such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the omissions or violations (or alleged omissions or
violations) that resulted in such loss, claim, damage or
liability. The relative fault of the indemnifying party and of the
indemnified party will be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that in no event will any contribution
by a holder hereunder exceed the net proceeds from the offering received by such
holder less any amounts paid pursuant to Section 5(b). The
Corporation and each holder of Shares agrees that it would not be just and
equitable if contribution pursuant to this Section 5(e) were determined by
any method of allocation that does not take into account the equitable
considerations referred to in this Section 5(e). No Person
guilty of fraudulent misrepresentation (within the meaning of subsection 11(f)
of the Securities Act) will be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
6. Participation
in Underwritten Registrations. No Person may participate in
any registration pursuant to this Agreement that is underwritten unless such
Person (a) agrees to sell such Person’s securities on the basis provided in any
underwriting arrangements reasonably approved by the Person or Persons entitled
pursuant to this Agreement to approve such arrangements, and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents that are standard and customary and are required
under the terms of such underwriting arrangements.
7. Definitions.
“Agreement” is defined
in the preamble.
“Common Stock” means
the common stock of the Corporation.
“Corporation” has the
meaning set forth in the preamble.
“Person” means a
natural person, a partnership, a corporation, an association, a joint stock
company, a trust, an estate, a joint venture, an unincorporated organization or
a governmental entity or any department, agency or political subdivision
thereof.
“Piggyback
Registration” is defined in Section 1(a).
“Preferred
Shareholders” is defined in the preamble.
“Preferred Shares”
means the Series B 9% Non-Cumulative Perpetual Convertible Preferred Stock of
the Corporation that the each of the Preferred Shareholders have agreed to
purchase pursuant to the Subscription Agreement.
“Registration
Expenses” is defined in Section 4(a).
“Rule 144” means Rule
144 promulgated under the Securities Act, as in effect from time to
time.
“Securities Act” means
the Securities Act of 1933, as amended and in effect from time to
time.
“Securities Exchange
Act” means the Securities Exchange Act of 1934, as amended and in effect
from time to time.
“Shares” means
at any time (i) any shares of Common Stock then outstanding which were issued
upon conversion of Preferred Shares; (ii) any shares of Common Stock then
issuable upon conversion of then outstanding Preferred Shares; (iii) any shares
of Common Stock then outstanding which were issued as, or were issued directly
or indirectly upon the conversion or exercise of other securities issued as, a
dividend or other distribution with respect to or in replacement of other
Shares; and (iv) any shares of Common Stock then issuable directly or indirectly
upon the conversion or exercise of other securities which were issued as a
dividend or other distribution with respect to or in replacement of other
Shares. Any particular Shares will cease to be Shares for all
purposes when (x) such Shares have been distributed to the public pursuant to an
offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 (or any similar rule
then in force) or (y) on the date when the holder of such Shares is able to sell
all such securities during any three month period, without registration,
pursuant to Rule 144 under the Securities Act. For purposes of this
Agreement, a Person will be deemed to be a holder of Shares whenever such Person
has the right to acquire such Shares (upon conversion or exercise or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected.
8. Rule
144. For so long as the Common Stock of the Corporation
remains registered under Section 12 of the Securities Exchange Act, the
Corporation will use its commercially reasonable efforts to take such further
action as any holder of Shares may reasonably request to the extent required
from time to time to enable such holder to sell Shares without registration
under the Securities Act within the limitation of the exemptions provided by (a)
Rule 144 or (b) any similar rule or regulation hereafter adopted by the
Securities and Exchange Commission.
9. Miscellaneous.
(a) No Inconsistent
Agreements. The Corporation will not after the execution of
this Agreement enter into any agreement which is inconsistent with or violates
the rights granted to the holders of Shares in this Agreement.
(b) Adjustments Affecting
Shares. The Corporation will not take any action, or permit
any change to occur, which would materially and adversely affect the ability of
the holders of Shares to include such Shares in a registration undertaken
pursuant to this Agreement.
(c) Amendments and
Waivers. Except as otherwise provided in this Agreement, the
provisions of this Agreement may be amended or waived only upon the written
approval of the Corporation and the holders of a majority of the Shares;
provided that no such approval will be required to approve any amendment made to
reflect the terms and conditions of any new class or series of equity securities
and any restrictions, rights, preferences and privileges associated therewith;
and provided, further, that no such modification, amendment or waiver that by
its terms adversely affects one or more of the holders of the Shares, as
compared with its effect on other holders of the Shares, will be effective as
against such adversely-affected holders of the Shares unless it is approved in
writing by the holders of a majority of the Shares held by such
adversely-affected holders of the Shares. The failure of any party to
enforce any of the provisions of this Agreement will in no way be construed as a
waiver of such provisions and will not affect the right of such party thereafter
to enforce each and every provision of this Agreement in accordance with its
terms. No alteration, modification, waiver or impairment will be
implied by reason of any previous waiver, extension of time, delay or omission
in exercise, or other indulgence.
(d) Severability. Whenever
possible, each provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
(e) Entire
Agreement. This Agreement and the other agreements referred to
herein embody the complete agreement and understanding among the parties to this
Agreement with respect to the subject matter hereof and supersede and preempt
any prior understandings, agreements or representations by or among the parties,
written or oral, that may have related to the subject matter hereof in any
way.
(f) Successors and
Assigns. Except as otherwise provided in this Agreement, this
Agreement will bind and inure to the benefit of and be enforceable by the
Corporation and its successors and assigns and the holders of Shares and any
subsequent holders of their respective Shares and the respective successors and
assigns of each of them, so long as they hold Shares.
(g) Counterparts. This
Agreement may be executed in separate counterparts (including by facsimile or
..pdf signature page) each of which will be an original and all of which taken
together will constitute one and the same agreement.
(h) Remedies. The
parties to this Agreement will be entitled to enforce their rights under this
Agreement specifically by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in their
favor. The parties to this Agreement agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Corporation or any holder of Shares may at his, hers, or
its election apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief (without posting a bond or other
security) in order to enforce or prevent any violation of the provisions of this
Agreement.
(i) WAIVER OF
JURY TRIAL. EACH PARTY TO THIS
AGREEMENT HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER
OR RELATING TO THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES TO THIS AGREEMENT IN RESPECT OF THIS
AGREEMENT OR ANY OF THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR
OTHERWISE. EACH PARTY TO THIS AGREEMENT HEREBY AGREES AND CONSENTS
THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION WILL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE PARTIES TO THIS AGREEMENT TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(j) Notices. All
notices, demands or other communications to be given or delivered under or by
reason of the provisions of this Agreement will be in writing and will be deemed
to have been given (i) on the date of personal delivery to the recipient or
an officer of the recipient, or (ii) when sent by telecopy or facsimile
machine to the number shown below on the date of such confirmed facsimile or
telecopy transmission (provided that a confirming copy is sent via overnight
mail), or (iii) on the Business Day after it is deposited for delivery by a
nationally recognized commercial overnight delivery service, prepaid, or (iv) on
the third Business Day after deposit in the United States mail, certified or
registered mail, postage prepaid, return receipt requested. Such
notices, demands and other communications to be sent to any holder of Shares
will be sent to such holder of Shares at the address set forth for such holder
of Shares in the stock record books of the Corporation, and all such notices,
demands and other communications to be sent to the Corporation will be sent to
the Corporation at the address set forth below:
First
Mid-Illinois Bancshares, Inc.
0000
Xxxxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Chief Executive Officer
and
copies of notices to the Corporation (which will not constitute notice to the
Corporation) will be sent to:
Xxxxxx
Xxxxxx LLP
0000
Xxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention: Xxxxx
X. Xxxxxxxx, Esq.
or to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
(k) Governing
Law. This Agreement shall be construed and interpreted
in accordance with Delaware law without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(l) No Strict
Construction. The parties to this Agreement have participated
jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties to this
Agreement, and no presumption or burden of proof will arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
(m) Parties in
Interest. Nothing in this Agreement will be construed to be to
the benefit of or enforceable by any Person that is not a party to this
Agreement, including any creditor of the Corporation. There are not
third-party beneficiaries to or of this Agreement.
(n) Service of
Process. IN ANY AND ALL SUITS, LEGAL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT, LEGAL ACTION OR PROCEEDING, EACH
HOLDER OF THE SHARES WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS AND AGREES THAT SERVICE THEREOF MAY BE MADE IN ANY MANNER PROVIDED IN
SECTION 9(j).
(o) Descriptive
Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
(p) Certain
Terms. The use of the word “including” in this Agreement means
“including without limitation.” Any terms used in this Agreement and
defined in the plural will be deemed to include the singular as the context may
require and any terms used in this Agreement defined in the singular will be
deemed to include the plural as the context may require. Wherever
reference is made in this Agreement to the male, female or neuter genders, such
reference will be deemed to include any of the other genders as the context may
require.
(q) Transfer. Prior
to transferring any Shares, other than in a transfer pursuant to which such
Shares cease to be Shares, to any Person, the Person transferring such shares
will cause the prospective transferee to execute and deliver to the Company (for
itself and as the agent of the other Shareholders), a counterpart to this
Agreement pursuant to which the prospective transferee agrees to be bound by
this Agreement to the same extent as the Person transferring such shares of
Common Stock with respect to the shares of Common Stock so
transferred. Any purported transfer of Shares that is not effected in
accordance with the preceding sentence will be null and void and will not be
binding upon the Company or any Shareholder or create any right in favor of the
purported transferee.
* * * *
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IN
WITNESS WHEREOF, the parties hereto have executed this REGISTRATION RIGHTS
AGREEMENT effective as of the date first above written.
FIRST-MID
ILLINOIS BANCSHARES, INC.
By:
Name:
Title:
SIGNATURES
Preferred
Shareholder:
Dated: ,
2009. Dated: ,
2009.
X X
|
Signature
|
Signature
of Second Individual (if
applicable)
|
Name
(Typed or
Printed) Name
(Typed or Printed)
