REGISTRATION RIGHTS AGREEMENT dated as of October 15, 2010 by and between PATRIOT NATIONAL BANCORP, INC. and PNBK HOLDINGS LLC
Exhibit 10.1
EXECUTION COPY
dated as of October 15, 2010
by and between
PATRIOT NATIONAL BANCORP, INC.
and
PNBK HOLDINGS LLC
Table of Contents
1. Certain Definitions |
1 | |||
2. Shelf Registration Statements |
4 | |||
3. Additional Demand Registrations |
5 | |||
4. Piggyback Registrations |
6 | |||
5. Other Registrations |
7 | |||
6. Selection of Underwriters |
8 | |||
7. Holdback Agreements |
8 | |||
8. Procedures |
8 | |||
9. Registration Expenses |
13 | |||
10. Indemnification |
14 | |||
11. Rule 144 |
15 | |||
12. Transfer of Registration Rights |
16 | |||
13. Conversion or Exchange of Other Securities |
16 | |||
14. Miscellaneous |
17 |
REGISTRATION RIGHTS AGREEMENT, dated as of October 15, 2010, by and between Patriot National
Bancorp, Inc., a Connecticut corporation (the “Company”), and PNBK Holdings LLC, a Delaware
limited liability company (“Investor”).
In consideration of the mutual covenants and agreements herein contained and other good and
valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to
this Agreement hereby agree as follows:
1. Certain Definitions.
In addition to the terms defined elsewhere in this Agreement, the following terms shall have
the following meanings:
“Affiliate” of any Person means any other Person that, directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under common control with, such
Person. The term “control” (including the terms “controlling,” “controlled by” and “under common
control with”) as used with respect to any Person means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
“Agreement” means this Registration Rights Agreement, including all amendments,
modifications and supplements and any exhibits or schedules to any of the foregoing, and shall
refer to this Registration Rights Agreement as the same may be in effect at the time such reference
becomes operative.
“Blackout Period” has the meaning set forth in Section 8(e) hereof.
“Business Day” means any day, except a Saturday, Sunday or legal holiday on which
banking institutions in the State of New York or State of Connecticut are authorized or obligated
by law or executive order to close.
“Closing Date” has the meaning set forth in the Securities Purchase Agreement.
“Common Stock” means common stock, par value $0.01 per share, of the Company.
“Company” has the meaning set forth in the introductory paragraph and includes any
other person referred to in the second sentence of Section 14(c) hereof.
“Delay Period” has the meaning set forth in Section 3(d) hereof.
“Demand Registration” has the meaning set forth in Section 3(a) hereof.
“Demand Registration Statement” has the meaning set forth in Section 3(a) hereof.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Full Cooperation” means, in connection with any underwritten offering, where, in
addition to the cooperation otherwise required by this Agreement, (a) members of senior management
of the Company (including the chief executive officer and chief financial officer) fully cooperate
with the underwriter(s) in connection therewith and, at the recommendation or request of the
underwriters, make themselves available to participate in “road-show” and other customary marketing
activities in such locations (domestic and foreign) as recommended by the underwriter(s) (including
one-on-one meetings with prospective purchasers of the Registrable Common Stock) and (b) the
Company prepares preliminary and final prospectuses (preliminary and final prospectus supplements
in the case of an offering pursuant to the Shelf Registration Statement) for use in connection
therewith containing such additional information as reasonably requested by the underwriter(s) (in
addition to the minimum amount of information required by law, rule or regulation).
“Fully Marketed Underwritten Offering” means an underwritten offering in which there
is Full Cooperation.
“Governmental Entity” means any national, federal, state, municipal, local,
territorial, foreign or other government or any department, commission, board, bureau, agency,
regulatory authority or instrumentality thereof, or any court, judicial, administrative or arbitral
body or public or private tribunal.
“Investor” has the meaning set forth in the introductory paragraph.
“NASDAQ” means The NASDAQ Stock Market LLC.
“Permitted Transferee” means an Affiliate of the Investor or any member, limited
partner or shareholder of the Investor or member, limited partner or shareholder of the Investor’s
Affiliates.
“Person” means any individual, sole proprietorship, partnership, limited liability
company, joint venture, trust, unincorporated organization, association, corporation, institution,
public benefit corporation, Governmental Entity or any other entity.
“Piggyback Registration” has the meaning set forth in Section 4(a) hereof.
“Piggyback Registration Statement” has the meaning set forth in Section 4(a) hereof.
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“Prospectus” means the prospectus or prospectuses forming a part of, or deemed to form
a part of, or included in, or deemed included in, any Registration Statement, as
amended or supplemented by any prospectus supplement with respect to the terms of the offering
of any portion of the Registrable Common Stock covered by such Registration Statement and by all
other amendments and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
“Registrable Common Stock” means (i) any shares of Common Stock issued as Stock
Consideration and (ii) any other security into or for which the Common Stock referred to in clause
(i) has been converted, substituted or exchanged, and any security issued or issuable with respect
thereto upon any stock dividend or stock split or in connection with a combination of shares,
reclassification, recapitalization, merger, consolidation or other reorganization or otherwise.
“Registration Expenses” has the meaning set forth in Section 9(a) hereof.
“Registration Statement” means any registration statement of the Company that covers
any of the Registrable Common Stock pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all materials incorporated by reference in such Registration
Statement.
“Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC as a replacement thereto having substantially the same effect as such rule.
“Rule 415” means Rule 415 promulgated by the SEC pursuant to the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC as a replacement thereto having substantially the same effect as such rule.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Purchase Agreement” means the Securities Purchase Agreement, dated as of
December 16, 2009, by and among the Company, Patriot National Bank, a banking subsidiary of the
Company organized under the laws of the United States of America, and Investor, as amended. All
capitalized terms used herein but not otherwise defined shall have those meanings set forth in the
Securities Purchase Agreement.
“Shelf Registration Statement” has the meaning set forth in Section 2(a) hereof.
“Stock Consideration” means the shares of Common Stock issued to Investor pursuant to
the Securities Purchase Agreement.
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“Suspension Notice” has the meaning set forth in Section 8(e) hereof.
“underwritten registration or underwritten offering” means an offering in which
securities of the Company are sold to one or more underwriters (as defined in Section 2(a)(11) of
the Securities Act) for resale to the public.
2. Shelf Registration Statements.
(a) Right to Request Registration. At the request of Investor, the Company shall use
its reasonable best efforts to promptly file a registration statement on Form S-3 or such other
form under the Securities Act then available to the Company providing for the resale pursuant to
Rule 415 from time to time by Investor of such number of shares of Registrable Common Stock
requested by Investor to be registered thereby (including the Prospectus, amendments and
supplements to the shelf registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such shelf registration statement, the “Shelf
Registration Statement”). The Company shall use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the SEC as promptly as practicable following
such filing. The Company shall maintain the effectiveness of the Shelf Registration Statement for
a period of at least eighteen (18) months in the aggregate plus the duration of any Blackout
Period. The plan of distribution contained in the Shelf Registration Statement (or related
Prospectus supplement) shall be determined by Investor in consultation with the Company.
(b) Number of Fully Marketed Underwritten Offerings. Investor shall be entitled to
request an aggregate of four (4) Fully Marketed Underwritten Offerings pursuant to the Shelf
Registration Statement; provided, however, that Investor shall be entitled to
request no more than two (2) underwritten offerings pursuant to the Shelf Registration Statement in
any twelve (12)-month period that require involvement by management of the Company in “road-show”
or similar marketing activities. If Investor requests a Fully Marketed Underwritten Offering, the
Company shall cause there to occur Full Cooperation in connection therewith. An underwritten
offering shall not count as one of the permitted Fully Marketed Underwritten Offerings if there is
not Full Cooperation in connection therewith or Investor is not able to sell at least 50% of the
Registrable Common Stock desired to be sold in such Fully Marketed Underwritten Offering. Except
as provided in this Section 2(b), there shall be no limitation on the number of takedowns off the
Shelf Registration Statement.
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3. Additional Demand Registrations.
(a) Right to Request Registration. Any time after the date hereof, Investor may request registration for resale under the
Securities Act of all or part of the Registrable Common Stock pursuant to a Registration Statement
separate from the Shelf Registration Statement (a “Demand Registration”). As promptly as
practicable after such request, but in any event within twenty (20) days of such request by
Investor, the Company shall file a registration statement registering for resale such number of
shares of Registrable Common Stock held by Investor as requested to be so registered (including the
Prospectus, amendments and supplements to such registration statement or Prospectus, including pre-
and post-effective amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement, a “Demand
Registration Statement”). In connection with each such Demand Registration, the Company shall
cause there to occur Full Cooperation.
(b) Number of Demand Registrations. Investor will be entitled to request four (4)
Demand Registrations pursuant to Section 3(a) minus the number of Fully Marketed Underwritten
Offerings completed off of the Shelf Registration Statement. A registration shall not count as one
of the permitted Demand Registrations pursuant to Section 3(a) (i) until the related Demand
Registration Statement has become effective, (ii) if Investor is not able to register and sell at
least 50% of the Registrable Common Stock requested to be included in such registration, or (iii)
if there was not Full Cooperation in connection therewith. For avoidance of doubt, the aggregate
number of Demand Registrations and Fully Marketed Underwritten Offerings completed off of the Shelf
Registration Statement shall not exceed four (4).
(c) Priority on Demand Registrations. If a Demand Registration pursuant to this
Section 3 involves an underwritten offering and the managing underwriter shall advise the Company
that in its opinion the number of securities requested to be included in such registration exceeds
the number of securities that can be sold in such offering without having an adverse effect on such
offering, including the price at which such securities can be sold, then the Company shall include
in such registration the maximum number of shares that such underwriter advises can be so sold
without having such effect, allocated (i) first, to Registrable Common Stock requested by Investor
to be included in such registration and (ii) second, among all shares of Common Stock requested to
be included in such registration by any other Persons (including securities to be sold for the
account of the Company) allocated among such Persons in such manner as they may agree.
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(d) Restrictions on Demand Registrations. The Company may postpone the filing or the
effectiveness of a Demand Registration Statement if, based on the good faith judgment of the
Company’s Board of Directors, such postponement is necessary in order to avoid premature disclosure
of a matter the Board of Directors has determined would not be in the best interest of the
Company to be disclosed at such time; provided, however, that Investor
requesting such Demand Registration Statement shall be entitled, at any time after receiving notice
of such postponement and before such Demand Registration Statement becomes effective, to withdraw
such request and, if such request is withdrawn, such Demand Registration shall not count as one of
the permitted Demand Registrations. The Company shall provide written notice to Investor of (x)
any postponement of the filing or effectiveness of a Demand Registration Statement pursuant to this
Section 3(d), (y) the Company’s decision to file or seek effectiveness of such Demand Registration
Statement following such postponement and (z) the effectiveness of such Demand Registration
Statement. The Company may defer the filing or effectiveness of a particular Demand Registration
Statement pursuant to this Section 3(d) only once during any twelve (12)-month period.
Notwithstanding the provisions of this Section 3(d), the Company may not postpone the filing or
effectiveness of a Demand Registration Statement past the date that is the earliest of (a) the date
upon which any disclosure of a matter the Board of Directors has determined would not be in the
best interest of the Company to be disclosed is disclosed to the public or ceases to be material,
(b) forty-five (45) days after the date upon which the Board of Directors has determined such
matter should not be disclosed and (c) such date that, if such postponement continued, would result
in there being more than ninety (90) days in the aggregate in any twelve (12)-month period during
which the filing or effectiveness of one or more Registration Statements has been so postponed. The
period during which filing or effectiveness is so postponed hereunder is referred to as a
“Delay Period.”
(e) Effective Period of Demand Registrations. After any Demand Registration filed
pursuant to this Agreement has become effective, the Company shall use its reasonable best efforts
to keep such Demand Registration Statement effective for a period of at least 90 days from the date
on which the SEC declares such Demand Registration Statement effective plus the duration of any
Delay Period and any Blackout Period, or such shorter period that shall terminate when all of the
Registrable Common Stock covered by such Demand Registration Statement has been sold pursuant to
such Demand Registration Statement in accordance with the plan of distribution set forth therein.
4. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to publicly sell or register
for sale any of its common equity securities pursuant to a registration statement (a “Piggyback
Registration Statement”) under the Securities Act (other than a registration statement on Form
S-8 or on Form S-4 or any similar successor forms thereto), whether for its own account or for the
account of one or more securityholders of the Company (a “Piggyback Registration”), the
Company shall give prompt written notice to Investor of its intention to effect such
sale or registration and, subject to Sections 4(b) and 4(c), shall include in such transaction
all Registrable Common Stock with respect to which the Company has received a written request from
Investor for inclusion therein within fifteen (15) days after the receipt of the Company’s notice.
The Company may postpone or withdraw the filing or the effectiveness of a Piggyback Registration at
any time in its sole discretion, without prejudice to Investor’s right to immediately request a
Demand Registration or Shelf Registration Statement hereunder. A Piggyback Registration shall not
be considered a Demand Registration for purposes of Section 3 of this Agreement or a Shelf
Registration Statement for purposes of Section 2 of this Agreement.
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(b) Priority on Primary Registrations. If a Piggyback Registration is initiated as an
underwritten primary registration on behalf of the Company where the primary use of proceeds does
not include the repurchase, redemption, subscription or retirement of capital stock of the Company
(a “Stock Repurchase”), and the managing underwriter advises the Company in writing that in
its opinion the number of securities requested to be included in such registration exceeds the
number of securities that can be sold in such offering without having an adverse effect on such
offering, including the price at which such securities can be sold, then the Company shall include
in such registration the maximum number of shares that such underwriter advises can be so sold
without having such effect, allocated (i) first, to the securities the Company proposes to sell,
(ii) second, to the Registrable Common Stock requested to be included therein by Investor, and
(iii) third, among other securities requested to be included in such registration by other security
holders of the Company on such basis as such holders may agree among themselves and the Company.
(c) Priority on Secondary Registrations. If a Piggyback Registration is initiated as
an underwritten registration on behalf of a holder of the Company’s securities other than
Registrable Common Stock or on behalf of the Company where the use of proceeds includes a Stock
Repurchase, and the managing underwriter advises the Company in writing that in its opinion the
number of securities requested to be included in such registration exceeds the number that can be
sold in such offering without having an adverse effect on such offering, including the price at
which such securities can be sold, then the Company shall include in such registration the maximum
number of shares that such underwriter advises can be so sold without having such effect, allocated
(i) first, to the securities requested to be included therein by the holder(s) requesting such
registration and the Registrable Common Stock requested to be included in such registration, pro
rata among the holders of such securities on the basis of the number of shares requested to be
registered by such holders and (ii) second, to other securities (including Registrable Common
Stock) requested to be included in such registration by other security holders, the Company and
Investor, pro rata among such holder(s), the Company and Investor on the basis of the number of
shares requested to be registered by them.
5. Other Registrations
The Company shall not grant to any Person the right, other than as set forth herein, to
request the Company to register any securities of the Company except such rights as are not more
favorable than or not inconsistent with the rights granted to Investor and that do not adversely
affect the priorities set forth herein of Investor.
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6. Selection of Underwriters.
If any of the Registrable Common Stock covered by a Demand Registration Statement or a Shelf
Registration Statement is to be sold in an underwritten offering, Investor shall have the right to
select the managing underwriter(s) to administer the offering subject to the prior approval of the
Company, which approval shall not be unreasonably withheld.
7. Holdback Agreements.
The Company agrees not to, and shall exercise its reasonable best efforts to obtain agreements
(in the underwriters’ customary form) from its directors, executive officers and beneficial owners
of 5% or more of the Company’s outstanding voting stock not to, directly or indirectly offer, sell,
pledge, contract to sell, (including any short sale), grant any option to purchase or otherwise
dispose of any equity securities of the Company or enter into any hedging transaction relating to
any equity securities of the Company during the ninety (90) days beginning on the effective date of
any underwritten Demand Registration Statement or any underwritten Piggyback Registration Statement
or the pricing date of any underwritten offering pursuant to any Registration Statement (except as
part of such underwritten offering or pursuant to registrations on Form S-8 or S-4 or any successor
forms thereto) unless the underwriter managing the offering otherwise agrees to a shorter period.
8. Procedures.
(a) In connection with the registration and sale of Registrable Common Stock pursuant to this
Agreement, the Company shall use its reasonable best efforts to effect the registration and the
sale of such Registrable Common Stock in accordance with Investor’s intended methods of disposition
thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to
such Registrable Common Stock and use its reasonable best efforts to cause such
Registration Statement to become effective as soon as practicable thereafter; and
before filing a Registration Statement or Prospectus or any amendments or
supplements thereto (including any prospectus supplement for a shelf takedown),
furnish to Investor and the underwriter or underwriters, if any, copies of all such
documents proposed
to be filed, including documents incorporated by reference in the Prospectus
and, if requested by Investor, the exhibits incorporated by reference, and Investor
(and the underwriter(s), if any) shall have the opportunity to review and comment
thereon, and the Company will make such changes and additions thereto as reasonably
requested by Investor (and the underwriter(s), if any) prior to filing any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto;
8
(ii) 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 for a period of not less
than 90 days, in the case of a Demand Registration Statement or an aggregate of
eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each
case, the duration of any Delay Period and any Blackout Period), or such shorter
period as is necessary to complete the distribution of the securities covered by
such Registration Statement and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of disposition
by Investor thereof set forth in such Registration Statement and, in the case of
the Shelf Registration Statement, prepare such prospectus supplements containing
such disclosures as may be reasonably requested by Investor or any underwriter(s)
in connection with each shelf takedown;
(iii) furnish to Investor such number of copies of such Registration
Statement, each amendment and supplement thereto, each Prospectus (including each
preliminary Prospectus and Prospectus supplement) and such other documents as
Investor and any underwriter(s) may reasonably request in order to facilitate the
disposition of the Registrable Common Stock, provided, however,
that the Company shall have no such obligation to furnish copies of a final
prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied
by the Company;
(iv) use its reasonable best efforts to register or qualify such Registrable
Common Stock under such other securities or blue sky laws of such jurisdictions
(domestic or foreign) as Investor and any underwriter(s) reasonably requests and do
any and all other acts and things that may be reasonably necessary or advisable to
enable Investor and any underwriter(s) to consummate the disposition in such
jurisdictions of the Registrable Common Stock (provided, that the Company will not
be required to (1) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph (iv),
(2) subject itself to taxation in any such jurisdiction or (3) consent to
general service of process in any such jurisdiction);
(v) notify Investor and any underwriter(s), at any time when a Prospectus
relating thereto is required to be delivered under the Securities Act, of the
occurrence of any event as a result of which any Prospectus contains an untrue
statement of a material fact or omits any material fact necessary to make the
statements therein not misleading, and, at the request of Investor or any
underwriter(s), the Company shall prepare a supplement or amendment to such
Prospectus so that, as thereafter supplemented and/or amended, such Prospectus
shall not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
9
(vi) in the case of an underwritten offering, (i) enter into such customary
agreements (including underwriting agreements in customary form), (ii) take all
such other actions as Investor or the underwriter(s) reasonably request in order to
expedite or facilitate the disposition of such Registrable Common Stock (including,
without limitation, causing senior management and other Company personnel to
cooperate with Investor and the underwriter(s) in connection with performing due
diligence) and (iii) cause its counsel to issue opinions of counsel in form,
substance and scope as are customary in primary underwritten offerings, addressed
and delivered to the underwriter(s) and Investor;
(vii) in connection with each Demand Registration pursuant to Section 3 and
each Fully Marketed Underwritten Offering requested by Investor under Section 2,
cause there to occur Full Cooperation and, in all other cases, cause members of
senior management of the Company to be available to participate in, and to
cooperate with the underwriter(s) in connection with customary marketing activities
(including select conference calls and one-on-one meetings with prospective
purchasers);
(viii) make available for inspection by Investor, any underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney, accountant or other agent retained by Investor or underwriter, all
pertinent financial and other records, pertinent corporate documents and properties
of the Company, and cause the Company’s officers, directors, employees and
independent accountants to supply all information reasonably requested by Investor,
any underwriter, any attorney, any accountant or any agent in connection with such
Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common
Stock to be listed on NASDAQ, or any exchange on which securities of the same class
issued by the Company are then listed or, if no such similar securities are then
listed, on a national securities exchange selected by the Company and agreed to by
Investor;
(x) provide a transfer agent and registrar for all such Registrable Common
Stock not later than the effective date of such Registration Statement;
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(xi) if requested, cause to be delivered, immediately prior to the pricing of
any underwritten offering, immediately prior to effectiveness of each Registration
Statement (and, in the case of an underwritten offering, at the time of closing of
the sale of Registrable Common Stock pursuant thereto), letters from the Company’s
independent registered public accountants addressed to Investor and each
underwriter, if any, stating that such accountants are independent public
accountants within the meaning of the Securities Act and the applicable rules and
regulations adopted by the SEC thereunder, and otherwise in customary form and
covering such financial and accounting matters as are customarily covered by
letters of the independent registered public accountants delivered in connection
with primary underwritten public offerings;
(xii) make generally available to Investor and its Affiliates a consolidated
earnings statement (which need not be audited) for the 12 months beginning after
the effective date of a Registration Statement as soon as reasonably practicable
after the end of such period, which earnings statement shall satisfy the
requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Investor and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment,
the Prospectus or any Prospectus supplement or post-effective
amendment to the Registration Statement has been filed and, with
respect to the Registration Statement or any post-effective
amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or
supplements to the Registration Statement or any Prospectus or of
any inquiry by the SEC relating to the Registration Statement or
the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its
initiation of any proceeding with respect to the issuance by the
SEC of any stop order suspending the effectiveness of the
Registration Statement; and
(4) of the receipt by the Company of any notification with respect
to the suspension of the qualification of any Registrable Common
Stock for sale under the applicable securities or blue sky laws of
any jurisdiction.
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(b) The Company represents and warrants that no Registration Statement (including any
amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no
representation or warranty with respect to information relating to Investor furnished to the
Company by or on behalf of Investor specifically for use therein).
(c) The Company shall make available to Investor (i) promptly after the same is prepared and
publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration
Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment
or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff
of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction,
including any domestic or foreign securities exchange), and each item of correspondence from the
SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body
having jurisdiction, including any domestic or foreign securities exchange), in each case relating
to such Registration Statement or to any of the documents incorporated by reference therein, and
(ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all
amendments and supplements thereto and such other documents as Investor or any underwriter may
reasonably request in order to facilitate the disposition of the Registrable Common Stock. The
Company will promptly notify Investor of the effectiveness of each Registration Statement or any
post-effective amendment or the filing of any supplement or amendment to such Shelf Registration
Statement or of any Prospectus supplement. The Company will promptly respond to any and all
comments received from the SEC, with a view towards causing each Registration Statement or any
amendment thereto to be declared effective by the SEC as soon as practicable and shall file an
acceleration request, if necessary, as soon as practicable following the resolution or clearance of
all SEC comments or, if applicable, following notification by the SEC that any such Registration
Statement or any amendment thereto will not be subject to review.
(d) The Company may require Investor to furnish to the Company any other information regarding
Investor and the distribution of such securities as the Company
reasonably determines, based on the advice of counsel, is required to be included in any
Registration Statement.
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(e) Investor agrees that, upon notice from the Company of the happening of any event as a
result of which the Prospectus included (or deemed included) in such Registration Statement
contains an untrue statement of a material fact or omits any material fact necessary to make the
statements therein not misleading (a “Suspension Notice”), Investor will forthwith
discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a
reasonable length of time not to exceed 10 days (45 days in the case of an event described in
Section 3(d)) until Investor is advised in writing by the Company that the use of the Prospectus
may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by
Section 8(a) hereof; provided, however, that such postponement of sales of
Registrable Common Stock by Investor shall not exceed ninety (90) days in the aggregate in any 12
month period. If the Company shall give Investor any Suspension Notice, the Company shall extend
the period of time during which the Company is required to maintain the applicable Registration
Statements effective pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such Suspension Notice to and including the date Investor
either is advised by the Company that the use of the Prospectus may be resumed or receives the
copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout
Period”). In any event, the Company shall not be entitled to deliver more than a total of
three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) The Company shall not permit any officer, director, underwriter, broker or any other
person acting on behalf of the Company to use any free writing prospectus (as defined in Rule 405
under the Securities Act) in connection with any registration statement covering Registrable Common
Stock, without the prior written consent of Investor and any underwriter.
9. Registration Expenses.
(a) All expenses incident to the Company’s performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees (including SEC registration fees
and FINRA filing fees), fees and expenses of compliance with securities or blue sky laws, listing
application fees, printing expenses, transfer agent’s and registrar’s fees, cost of distributing
Prospectuses in preliminary and final form as well as any supplements thereto, and fees and
disbursements of counsel for the Company and all accountants and other Persons retained by the
Company (all such expenses being herein called “Registration Expenses”) (but not including
any underwriting discounts or commissions or transfer taxes, if any, attributable to the sale of
Registrable Common Stock), shall be borne by the Company. In addition, the Company shall pay its
internal expenses (including, without limitation, 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 they are to
be listed.
(b) The Company shall pay, or shall reimburse Investor for, the reasonable fees and
disbursements of one law firm chosen by Investor as its counsel in connection with each
Registration Statement and sale of Registrable Common Stock pursuant thereto.
(c) The obligation of the Company to bear the expenses described in Section 9(a) and to pay or
reimburse Investor for the expenses described in Section 9(b) shall apply irrespective of whether
any sales of Registrable Common Stock ultimately take place.
13
10. Indemnification.
(a) The Company shall indemnify, to the fullest extent permitted by law, Investor and its
officers, directors, employees and Affiliates and each Person who controls Investor (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses
arising out of or based upon any untrue or alleged untrue statement of material fact contained in
any Registration Statement, Prospectus, preliminary Prospectus or any “issuer free writing
prospectus” (as defined in Securities Act Rule 433) or any amendment thereof or supplement thereto
or any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading or any violation or alleged violation by the Company
of the Securities Act, the Exchange Act or applicable “blue sky” laws, except insofar as the same
are made in reliance and in conformity with information relating to Investor furnished in writing
to the Company by Investor expressly for use therein. In connection with an underwritten offering,
the Company shall indemnify such underwriter(s), their officers, employees and directors and each
Person who controls such underwriter(s) (within the meaning of the Securities Act) at least to the
same extent as provided above with respect to the indemnification of Investor.
(b) In connection with any Registration Statement in which Investor is participating, Investor
shall furnish to the Company in writing such information as the Company reasonably determines,
based on the advice of counsel, is required to be included in any such Registration Statement or
Prospectus and shall indemnify, to the fullest extent permitted by law, the Company, its officers,
employees, directors, Affiliates, and each Person who controls the Company (within the meaning of
the Securities Act) against all losses, claims, damages, liabilities and expenses arising out of or
based upon any untrue or alleged untrue statement of material fact contained in the Registration
Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or
any omission or alleged omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only to
the extent that the same are made in reliance and in conformity with information relating to
Investor furnished in writing to the Company by Investor expressly for use therein.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification 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 shall 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 shall not be obligated to pay the fees and expenses of more than one counsel (in addition to
any local counsel) for all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party there may be one or more legal or
equitable defenses available to such indemnified party that are in addition to or may conflict with
those available to another indemnified party with respect to such claim. Failure to give prompt
written notice shall not release the indemnifying party from its obligations hereunder.
14
(d) The indemnification provided for under this Agreement shall 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 shall survive the transfer of
securities.
(e) If the indemnification provided for in or pursuant to this Section 10 is due in accordance
with the terms hereof, but is held by a court to be unavailable or unenforceable in respect of any
losses, claims, damages, liabilities or expenses referred to herein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified Person as a result of such losses, claims, damages, liabilities
or expenses 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 statements
or omissions that result in such losses, claims, damages, liabilities or expenses as well as any
other relevant equitable considerations. The relative fault of the indemnifying party on the one
hand and of the indemnified party on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the indemnifying party
or by the indemnified party, and by such party’s relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. In no event shall the liability
of Investor be greater in amount than the amount of net proceeds received by Investor upon such
sale.
11. Rule 144.
The Company covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder,
and it will take such further action as Investor may reasonably request to make available adequate
current public information with respect to the Company meeting the current public information
requirements of Rule 144(c) under the Securities Act, to the extent required to enable Investor to
sell Registrable Common Stock without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of Investor, the Company will deliver to Investor a written statement as to whether it has
complied with such information and requirements.
15
12. Transfer of Registration Rights.
(a) Investor may transfer all or any portion of its then-remaining rights under this Agreement
to any transferee who acquires at least ten percent (10%) of the Stock Consideration (each, a
“transferee”); provided, however, that the rights of the Investor to
registration of Registrable Common Stock pursuant to this Agreement may be assigned to any
Permitted Transferee of the Investor to which there is transferred to such Permitted Transferee any
Registrable Common Stock, regardless of amount. Any transfer of registration rights pursuant to
this Section 12 shall be effective upon receipt by the Company of (x) written notice from Investor
stating the name and address of any transferee and identifying the amount of Registrable Common
Stock with respect to which the rights under this Agreement are being transferred and the nature of
the rights so transferred and (y) a written agreement from the transferee to be bound by all of the
terms of this Agreement. In connection with any such transfer, the term “Investor” as used in this
Agreement shall, where appropriate to assign such rights to such transferee, be deemed to refer to
the transferee holder of such Registrable Common Stock. Investor and such transferees may exercise
the registration rights hereunder in such proportion (not to exceed the then-remaining rights
hereunder) as they shall agree among themselves.
(b) After such transfer, Investor shall retain its rights under this Agreement with respect to
all other Registrable Common Stock owned by Investor. Upon the request of Investor, the Company
shall execute a Registration Rights Agreement with such transferee or a proposed transferee
substantially similar to the applicable sections of this Agreement.
13. Conversion or Exchange of Other Securities.
If Investor offers Registrable Common Stock by forward sale, or any options, rights, warrants
or other securities issued by it or any other person that are offered with, convertible into or
exercisable or exchangeable for any Registrable Common Stock, the
Registrable Common Stock subject to such forward sale or underlying such options, rights,
warrants or other securities shall be eligible for registration pursuant to Sections 2, 3 and 4 of
this Agreement.
16
14. Miscellaneous.
(a) Notices. All notices, requests, consents and other communications required or
permitted hereunder shall be in writing and shall be hand delivered or mailed postage prepaid by
registered or certified mail or by facsimile transmission (with immediate telephone confirmation
thereafter) and, in the case of Investor, shall also be sent via e-mail,
(a)
|
If to Investor to it at: | |
| PNBK Holdings LLC | ||
| 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: Xxxxxxx X. Xxxxxxxx | ||
| Telephone: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
| with copies to (which copies alone shall not constitute notice): | ||
| Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP | ||
| Xxxx Xxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attn: Xxxxx X. Xxxxxx | ||
| Telephone: (000) 000-0000 |
||
| Fax: (000) 000-0000 | ||
| and | ||
| Xxxxxxxx & Xxxx LLP | ||
| 0000 Xxxxxxxxxx Xxxxxxxxx | ||
| Xxxxxxxx, XX 00000-0000 | ||
| Attn: Xxxx X. Xxxx | ||
| Telephone: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
17
(b)
|
If to the Company: | |
| Patriot National Bancorp, Inc. | ||
| 000 Xxxxxxx Xxxxxx | ||
| Xxxxxxxx, XX 00000 | ||
| Attn: Chairman of the Board | ||
| Telephone: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
| with copies to (which copies alone shall not constitute notice): | ||
| Xxxxxxxx, Xxxxx & Xxxxxx LLP | ||
| 00 Xxxxxx Xxxxxx | ||
| Xxxxxxxx, XX 00000 | ||
| Attn: Xxxxxxx X. Xxxxxx III | ||
| Xxxxx X. Xxxxxxx | ||
| Telephone: (000) 000-0000 |
||
| Fax: (000) 000-0000 | ||
or at such other address as such party each may specify by written notice to the others, and each
such notice, request, consent and other communication shall for all purposes of the Agreement be
treated as being effective or having been given when delivered personally, upon one business day
after being deposited with a courier if delivered by courier, upon receipt of facsimile
confirmation if transmitted by facsimile, or, if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for the deposit of
United States mail, addressed and postage prepaid as aforesaid.
(b) No Waivers. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
(c) Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns. If the
outstanding Common Stock is converted into or exchanged or substituted for other securities issued
by any other Person, as a condition to the effectiveness of the merger, consolidation,
reclassification, share exchange or other transaction pursuant to which such conversion, exchange,
substitution or other transaction takes place, such other Person shall automatically become bound
hereby with respect to such other securities constituting Registrable Common Stock and, if
requested by Investor or a permitted transferee, shall
further evidence such obligation by executing and delivering to Investor and such transferee a
written agreement to such effect in form and substance satisfactory to Investor.
(d) Governing Law. The internal laws, and not the laws of conflicts (other than
Section 5-1401 of the General Obligations Law of the State of New York), of New York shall govern
the enforceability and validity of this Agreement, the construction of its terms and the
interpretation of the rights and duties of the parties.
18
(e) Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby may be brought in any federal or state court located in the County and State of
New York, and each of the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such court or that any such
suit, action or proceeding which is brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided in Section 14(a)
shall be deemed effective service of process on such party.
(f) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts; Effectiveness. This Agreement may be executed in any number of
counterparts (including by facsimile) and by different parties hereto in separate counterparts,
with the same effect as if all parties had signed the same document. All such counterparts shall
be deemed an original, shall be construed together and shall constitute one and the same
instrument. This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
(h) Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes and replaces all other prior agreements, written or oral,
among the parties hereto with respect to the subject matter hereof.
(i) Captions. The headings and other captions in this Agreement are for convenience
and reference only and shall not be used in interpreting, construing or enforcing any provision of
this Agreement.
(j) Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such a determination, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
19
(k) Amendments. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given, without the written consent of the Company and
Investor.
(l) Aggregation of Stock. All Registrable Common Stock held by or acquired by any
Affiliated Persons will be aggregated together for the purpose of determining the availability of
any rights under this Agreement.
(m) Equitable Relief. The parties hereto agree that legal remedies may be inadequate
to enforce the provisions of this Agreement and that equitable relief, including specific
performance and injunctive relief, may be used to enforce the provisions of this Agreement.
20
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto as of the date first herein above written.
| PATRIOT NATIONAL BANCORP, INC. |
||||
| By: | /s/ Xxxxxx Xx Xxxx | |||
| Name: | Xxxxxx Xx Xxxx | |||
| Title: | CEO | |||
| PNBK HOLDINGS LLC |
||||
| By: | PNBK SPONSOR LLC, | |||
| its Managing Member |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Manager | |||
[Signature Page to Registration Rights Agreement]
