SHAREHOLDERS’ AGREEMENT
Exhibit 4.1
SHAREHOLDERS’ AGREEMENT
THIS SHAREHOLDERS’ AGREEMENT (this “Agreement”) dated as of June 3, 2010, and effective upon the Effective Date (as defined below), is entered into by and among HCBF Holding Company, Inc., a Florida corporation (the “Company”) and each of the Persons named in Schedule I hereto (individually, an “Investor” and, collectively, the “Investors”).
WHEREAS, the Company proposes to conduct a targeted equity raise of $350 million in connection with its application to the Office of Thrift Supervision (the “OTS”) to become a savings and loan holding company and to either: (1) fund an acquisition of an existing depository institution, First Bank and Trust of Indiantown, which will be converted into a federal savings association (the “Existing Bank”), or (2) obtain pre-clearance from the OTS to organize a de novo savings association (“New Bank”) in order to assume certain liabilities and purchase certain assets of one or more failing financial institutions through the resolutions bid process administered by the Federal Deposit Insurance Corporation (the “FDIC”). New Bank and the Existing Bank are collectively referred to herein as the “Bank”, and such acquisitions are referred to collectively as the “Potential Transactions” and individually as a “Potential Transaction”);
WHEREAS, in connection with the Potential Transactions, the Company shall own all of the outstanding shares of common stock of the Bank, and the Investors will own shares of Voting Common Stock, par value $0.001 per share (the “Voting Common Stock”), and shares of Non-Voting Common Stock, par value $0.001 per share (the “Non-Voting Common Stock”), of the Company (shares of Voting Common Stock and Non-Voting Common Stock are collectively referred to as the “Common Shares”) in accordance with the terms and conditions of those certain Subscription Agreements, dated as of June 3, 2010, executed by the Company and each of the Investors (each, a “Subscription Agreement”);
WHEREAS, at any time and from time to time following the closing date of the first Drawdown (the “Closing Date”) pursuant to the terms and conditions set forth in the Subscription Agreements, the Company may require an Investor to purchase additional Common Shares as set forth in such Investor’s Subscription Agreement; and
WHEREAS, the Company and each of the Investors desire, for their mutual benefit and protection, to enter into this Agreement to set forth their respective rights and obligations with respect to the capital stock of the Company (whether Common Shares or preferred stock, and whether outstanding or issued or acquired hereafter, including all shares of capital stock of the Company issuable upon the exercise of warrants, options or other rights to acquire shares of capital stock of the Company, or upon the conversion or exchange of any security) (collectively, the “Shares”).
NOW, THEREFORE, in consideration of the foregoing and the mutual warranties, representations, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, including any Person that is an
Affiliate as defined in HOLA (as defined below), 12 C.F.R. § 574.2(d) or 12 C.F.R. § 225.2(a); provided that no Investor shall be deemed an Affiliate of the Company or any of its subsidiaries for purposes of this Agreement; and provided further that no Investor shall be deemed an Affiliate of any other Investor solely as a result of its ownership of interests in the Company for purposes of this Agreement.
“Business Day” means any day except Saturday, Sunday or a day on which banking institutions in New York, New York, generally are authorized or required by law or other governmental action to close.
“Confidential Material” means any information concerning the Company and/or any Person that is or becomes a subsidiary of the Company or the financial condition, business, operations or prospects of the Company or any such Person (including notice of the Company’s intention to file a Registration Statement) in the possession of or furnished to any Investor (including by virtue of its affiliation with any director of the Company), including any reports, analyses, forecasts, compilations, memoranda, notes, studies and any other written or electronic materials that reflect or are based on such information; provided that the term Confidential Material does not include information that (i) is or becomes generally available to the public other than as a result of a disclosure by the Investor or its partners, shareholders, members, directors, officers, employees, Affiliates, appraisers, valuation firms, actuaries, accountants, consultants, subcontractors, experts, agents, attorneys, financial advisers or representatives in violation of a confidentiality obligation to the Company including pursuant to Section 5.7(d) of this Agreement, (ii) is or has been independently developed by the Investor without use of the Company’s confidential information, (iii) is or was available to such Investor on a non-confidential basis prior to its disclosure to such Investor or its Representatives (as defined below) by the Company, (iv) was or becomes available to such Investor on a non-confidential basis from a source other than the Company, which source is or was (at the time of receipt of the relevant information) not, to the best of such Investor’s knowledge, bound by a confidentiality agreement with (or other confidentiality obligation to) the Company or another Person.
“control” (including, with correlative meanings, the terms “controlling,” “controlled by,” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities or by contract or otherwise.
“Drawdown” has the meaning specified in the Subscription Agreement.
“Effective Date” means the date of the consummation of the initial Drawdown.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor or replacement federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.
“HOLA” means the Home Owners’ Loan Act of 1933, as amended, or any successor or replacement federal statute, and the rules and regulations of the OTS thereunder, all as the same shall be in effect from time to time.
“Investor’s Percentage” has the meaning specified in the Subscription Agreement.
“Person” means an individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization, other entity or government or other agency or political subdivision thereof.
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“Public Offering Event” means the first underwritten registered public offering of Shares pursuant to a Registration Statement.
“Qualified Public Offering” means a best efforts commitment underwritten public offering of shares of common stock of the Company for cash pursuant to a Registration Statement or Registration Statements (i) pursuant to which at least fifteen percent (15%) of the Shares outstanding immediately following such offering are distributed to the public and there is established a listing on a national securities exchange for the Shares, and (ii) with aggregate gross proceeds of at least $75,000,000.
“Registration Statement” means a registration statement filed by the Company with the SEC in compliance with the Securities Act for a public offering and sale of Shares or other securities of the Company (other than a registration statement on Form S-4 or Form S-8 (or any similar successor form)) or in connection with (i) a management equity plan or stock option plan or any other management or employee benefit plan or other equity compensation agreement of the Company or securities issued or issuable pursuant to any such plan, or (ii) a dividend reinvestment plan.
“register,” “registered,” and “Registration” refer to a registration effected by preparing and filing a Registration Statement or similar document in compliance with the Securities Act, and the declaration or ordering of effectiveness of such Registration Statement or document by the SEC.
“Regulatory Agency” means any agency that regulates the Company or the Bank, including, but not limited to, the FDIC and the OTS.
“Representatives” means the subsidiaries and affiliates (as such terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended), of such party and the directors, officers, partners, employees, representatives, advisors and agents (including, without limitation, attorneys, consultants and financial advisors) of such party and such party’s subsidiaries and affiliates.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, or any successor or replacement federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.
“SISA Investor” has the meaning specified in the Subscription Agreement.
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Securities Act (“Rule 144”), provided that there is an established public market for the Shares and the Company is timely filing periodic reports with the SEC; (d) pursuant to the consummation of a Public Offering Event; (e) pursuant to a merger, reorganization, consolidation, exchange or other business combination transaction that has received the approval of the Board of Directors of the Company (the “Board”); (f) pursuant to the written direction or order of any Regulatory Agency; (g) to the Company or its designee in the event of a default pursuant to Section 2(b) of an Investor’s Subscription Agreement; (h) by way of a pledge or encumbrance of, or grant of a security interest in, all or any portion of the Shares, provided that the Investor shall, not less than fifteen (15) days before pledging, encumbering or granting a security interest in any Shares, provide notice to the Company of the proposed pledge, encumbrance or other security interest (substantially in the form of Exhibit A hereto), and not less than three (3) days before the pledge, encumbrance or grant of a security interest will furnish to the Company the pledgee’s or secured party’s agreement (substantially in the form of Exhibit B) that any sale or other disposition of the Shares will be subject to all of the restrictions in, and conditions of, this Agreement; (i) following compliance with the terms of Section 2.5; or (j) pursuant to any restructuring contemplated by Section 2(c) of the Subscription Agreements (each of (a)-(j), a “Permitted Transfer”); provided, however, that in the event the Company or the Bank purchases the assets and assumes the liabilities of a failing financial institution from the FDIC, no Investor shall be permitted to Transfer any Shares in violation of the terms of the Final Statement of Policy on Qualification for Failed Bank Acquisitions issued by the Federal Deposit Insurance Corporation on August 26, 2009 (the “FDIC Policy Statement”). A “Permitted Transferee” of an Investor means (A) any Affiliate of such Investor, and (B) if such Investor is a natural person, (1) the guardian, conservator, heir or estate of such Investor, and (2) the spouse of such Investor, any direct or adopted lineal descendant or ancestor of such Investor or any brother, sister, nephew or niece related by blood or adoption to such Investor or any trust or family partnership solely for the benefit of any or all of the foregoing persons in this clause (2).
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(a) Proposed Transfer of Shares. Prior to any proposed Transfer (other than a Permitted Transfer) of Shares, an Investor that desires to Transfer any Shares (referred to for the purposes of this Section 2.5 as the “Transferring Investor”) shall deliver to the other Investors and the Company a notice (the “Transfer Notice”) of its intention to Transfer such Shares, which Transfer Notice shall be irrevocable for a period of forty-five (45) days after the delivery thereof and shall state all the material terms and conditions of the proposed transfer, including (i) the total amount of each class of Shares that such Investor intends to Transfer (the “Transfer Shares”), (ii) the proposed Transfer price per Transfer Share (the “Transfer Price”) for each class of Transfer Shares and other terms and conditions of payment, (iii) the proposed transferee (the “Proposed Transferee”), (iv) the proposed date of Transfer and (v) any other information reasonably requested by the other Investors or the Company to fully describe and confirm the bona fide nature of the proposed Transfer. The Transfer Shares shall be Transferred in the following order of priorities, unless otherwise waived by the applicable parties:
(i) First, the Company shall have the right, but not the obligation, to purchase all or a portion of the Transfer Shares for the applicable Transfer Price by giving written notification of the exercise of such right to the Transferring Investor and all other Investors within ten (10) days of delivery of the Transfer Notice.
(ii) Second, if the Company elects to purchase less than all of the Transfer Shares, the Investors (other than any Investor that delivers a Participation Notice pursuant to Section 2.5(e)) shall be entitled to purchase their pro rata share of the Transfer Shares not acquired by the Company for the applicable Transfer Price by giving written notification (the “Acceptance Notice”) of the exercise of such right to the Transferring Investor and the Company within fifteen (15) days of delivery of the Transfer Notice. For the avoidance of doubt, other than the Transfer Price, the other terms and conditions set forth in the Transfer Notice shall not apply to a Transfer to the Company or an Investor pursuant to this Section 2.5(a). Should one or more of such Investors elect not to participate, then the Transfer Shares not acquired by the Company may be purchased by any other such Investor in proportion to each such other Investors’ relative ownership percentage or such other method of allocation as otherwise agreed to by such other Investors.
(iii) Third, if the Company and the other Investors combined elect to purchase less than all of the Transfer Shares, then the Company shall have the right, but not the obligation, for a period of thirty (30) days from the date of the Transfer Notice, to locate a substitute third party purchaser (a “Substitute Third Party-Purchaser”) to purchase all, but not less than all, of the unsubscribed Transfer Shares (and any shares included pursuant to Section 2.5(e)) at the applicable Transfer Price.
(iv) Finally, if the Company and the other Investors combined elect to purchase less than all of the Transfer Shares and the Company does not locate a substitute third party purchaser to purchase all of the Transfer Shares, then the Transferring Investor shall have the right, subject to Section 2.5(e), for a period of forty-five (45) days from the date of the Transfer Notice, to sell the Transfer Shares to the Proposed Transferee for no less than the Transfer Price. If the Transferring Investor does not consummate the proposed Transfer within such forty-five (45) day period plus an additional sixty (60) days, as necessary, to obtain all required regulatory approvals from the applicable Regulatory Agency (the “Final Date”), then the Transfer Shares shall remain subject to this
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Section 2.5(a), and the Transferring Investor shall not thereafter Transfer any such Shares without again first complying with all of the provisions of this Section 2.5(a).
(b) Certain First Offer Limitations. Notwithstanding anything herein to the contrary, neither the Company nor any Investor shall be permitted to purchase the Transferred Shares to the extent such purchase would: (i) result in any Investor and any Affiliate of such Investor (considered as if they were a single entity) (A) having more than 24.99% of any class of voting securities of the Company (assuming conversion of Voting Common Stock to Non-Voting Common Stock in accordance with Article SIXTH of the Amended and Restated Articles of Incorporation of the Company (the “Articles of Incorporation”), as the same may be amended from time to time), (B) contributing more than 24.99% of the capital of the Company, or (C) having more than 24.99% of the capital of the Company, determined in the case of clauses (A), (B) and (C), in accordance with the rules and regulations of the OTS; or (ii) violate any of the provisions of the Subscription Agreement of the Proposed Transferee including, without limitation, Section 2(a)(ii), Section 2(a)(iii) and Section 2(a)(vii) thereof; provided that, in the case of any purchases by the Company, such threshold percentages with respect to any Investor shall be equal to its Investor’s Percentage.
(c) Modifications to Transfer. Should the Transferring Investor subsequently determine to change the amount of the Transfer Shares to be sold (other than as a result of required deductions pursuant to Section 2.5) or the applicable Transfer Price for any class of Transfer Shares after delivery of the Transfer Notice, the Transferring Investor shall be required to follow the same procedures set forth in Section 2.5(a) and 2.5(e) as if it were proposing a new Transfer.
(d) Closing. The closing of any sale of Transfer Shares to the Company, the Investors, any Substitute Third-Party Purchaser pursuant to this Section 2.5(a) shall take place at the offices of the Company no later than the Final Date. Each of the Company and/or Investors purchasing Transfer Shares shall pay their pro rata portion of the Transfer Price in a manner agreed to by the Company and/or Investors and the Transferring Investor. The Transferring Investor shall deliver the Transfer Shares free and clear of all liens, security interests and competing claims, and shall deliver to the Company and/or the Investors such instruments of transfer and other documents as the Company and/or Investors shall reasonably request.
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(v) This Section 2.5(e) will not apply to any Transfer by a SISA Investor.
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employees, consultants or directors of the Company whether or not pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or other equity compensation agreement of the Company and approved by the Board or any committee thereof; (iii) securities issued pursuant to any stock dividend, stock split, combination or other reclassification by the Company of any of its capital stock; (iv) securities issued in connection with debt financing transactions to which the Company and an unaffiliated third party that is not an Investor (or an Affiliate thereof) may be a party and that are approved by the Board, including securities issued pursuant to the exercise of warrants, rights, options or other securities issued in connection therewith; (v) securities issued as part of the sale of the Company, including any recapitalization of the Company, or in connection with the acquisition of another Person or any assets thereof by merger, purchase or otherwise; (vi) securities issued pursuant to the fulfillment of commitments made in the Subscription Agreements; or (vii) shares of Voting Common Stock issued upon the conversion of shares of Non-Voting Common Stock, shares of Non-Voting Common Stock issued upon the conversion of shares of Voting Common Stock or any other securities issued upon the conversion, exchange or exercise of any securities that may be issued by the Company that provide for the conversion or exchange into or exercise for any other securities.
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“Involuntary Transferee”), providing a detailed description of the circumstances giving rise to, and stating the legal basis for, the Involuntary Transfer. An Involuntary Transfer shall, upon action of the Board, be deemed to be an offer by the Involuntary Transferor to sell his, her or its Shares for their fair market value (as determined by an independent third party appraiser selected by the Board). Other than the determination of the purchase price, an Involuntary Transfer shall be treated as an offer to sell Shares pursuant to Section 2.5(a) hereof and any Transfer of Shares to an Involuntary Transferee will be deemed null and void ab initio unless the Involuntary Transferee complies with Section 2.5(a) hereof and enables the Company and the Investors to exercise in full their rights under Section 2.5(a) hereof; provided, however, that notwithstanding anything herein to the contrary, the provisions of Section 2.5(e) hereof shall not apply to any such Transfer. If the Company and the Investors do not elect to purchase all of the Shares subject to the Involuntary Transfer, such unpurchased Shares may be Transferred to the Involuntary Transferee, subject to the Involuntary Transferee agreeing to abide by the terms of this Agreement. An “Involuntary Transfer” means any Transfer, proceeding or action by which an Investor shall be involuntarily deprived or divested by operation of law or otherwise of any right, title or interest in or to any of his, her or its Shares, including, but not limited to (i) incompetency; (ii) any Transfer pursuant to a divorce or separation agreement or a final decree of a court in a divorce action; (iii) any seizure under levy of attachment or execution, including any Transfer of Shares related to the satisfaction of an obligation; (iv) any Transfer in connection with bankruptcy or other court proceeding to a debtor in possession, trustee in bankruptcy or other officer or agency; (v) any Transfer to a state or to a public officer or agency pursuant to any statute pertaining to escheat or abandoned property; or (vi) any Transfer similar to those set forth in clauses (i) through (v) above. For the avoidance of doubt, a default pursuant to Section 2(b) of an Investor’s Subscription Agreement resulting in a Transfer of Shares to the Company shall be a Permitted Transfer and not an Involuntary Transfer.
2.11 In connection with the Public Offering Event, if any, the underwriting agreement shall include provisions waiving any restrictions imposed by this Agreement on any sale or other transactions by any Investor involving the Company’s securities that such Investor has purchased in an initial public offering or other registered offering or on the open market following any such public offering.
ARTICLE III REGISTRATION RIGHTS
ARTICLE IV REPRESENTATIONS AND WARRANTIES
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been employed thereby for at least six months prior to the date of such Solicitation. For purposes of this Section 5.2, “Solicit” means any direct or indirect communication of any kind, regardless of who initiates it, for the purpose of inviting, encouraging or requesting any officer or senior manager to take or refrain from taking any action, other than any general advertisements or solicitations for employment (including through employment search firms) that are not targeted at such officer or senior manager and any communications with such officer or senior manager that result from such general advertisements or solicitations (and “Solicitation” has a correlative meaning).
5.3 Covenants on Regulatory Matters.
(a) Each Investor acknowledges and agrees that this Agreement (i) relates only to the Shares, (ii) will terminate in accordance with Section 6.1, and (iii) does not create an association or similar organization among the Investors to engage in activities other than through the Company. Neither the Company nor any Investor shall take, permit or allow any action that would cause any Investor or Investors to collectively hold any class of securities of the Company representing eighty percent (80%) or more of the Common Shares or other equity interests in the Company to collectively own eighty percent (80%) or more of the equity securities or interests of another depository institution (or any of its holding companies).
(b) Notwithstanding anything herein to the contrary, neither the Company nor any Investor shall be permitted to purchase any Common Shares (or other securities of the Company), including, without limitation, pursuant to Section 2.5, to the extent such purchase would: result in any Investor and any Affiliate of such Investor (considered as if they were a single entity) (i) having more than 24.99% of any class of voting securities of the Company, (ii) contributing more than 24.99% of the capital of the Company, or (iii) having more than 24.99% of the capital of the Company; provided that, in the case of any purchases by the Company, such threshold percentages with respect to any Investor shall be equal to its Investor’s Percentage. In the case of each of clause (i), (ii) and (iii), such threshold percentages shall be determined in accordance with the rules and regulations of the OTS. In addition, neither the Company nor any Investor shall be permitted to purchase any Common Shares (or other securities of the Company) to the extent such purchase would violate any provisions of the Subscription Agreement of the Investor.
(c) Unless approved by Requisite Approval (as defined below), no Investor shall take, permit or allow any action that would cause such Investor or an Affiliate of such Investor to be required to register as a savings and loan holding company under Section 10(e) of HOLA and 12 C.F.R. § 574.3(a), with respect to the Company or the Bank. For purposes of this Section 5.3, the term “Requisite Approval” shall mean the affirmative vote of shareholders holding at least 66 2/3 percent of the issued and outstanding Voting Common Stock.
(d) Unless approved in advance by the affected Investor and by Requisite Approval, neither the Company nor any Investor shall take, permit or allow any action that would cause another Investor or an Affiliate of another Investor to be required (i) to register as a savings and loan holding company under Section 10(e) of HOLA and 12 C.F.R. § 574.3(a), or (ii) to file prior notice or rebut any presumption under the Change in Bank Control Act of 1978, as amended, with respect to the Company.
(e) Unless approved by Requisite Approval, no Investor that is a savings and loan holding company or otherwise subject to the prior approval requirement of 12 U.S.C. § 1842(a)(3) shall directly or indirectly acquire, own or control five percent (5%) or more of any class of voting securities of the Company.
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(f) Unless approved by Requisite Approval, no Investor shall take, permit or allow any action that would cause the Company, the Bank or any other insured depository institution that is a direct or indirect subsidiary of the Company to become a “commonly controlled insured depository institution” (as that term is defined and interpreted for purposes of 12 U.S.C. § 1815(e), as may be amended or supplemented from time to time, and any successor thereto) or otherwise subject the Company or any of its Investors to cross-guarantee liability.
(g) Each Investor that breaches its obligations under this Section 5.3, or that believes it is reasonably likely to breach such obligations, shall immediately notify the Company and shall cooperate in good faith with the Company promptly to modify any ownership or other arrangements, or take any other action, as is necessary to cure or avoid such breach; provided that no such modification shall (i) require any other Investor to increase or decrease its ownership interest in the Company without the consent of such Investor, or (ii) violate or conflict with any other provision of this Section 5.3.
(h) At the request of the Company, each Investor agrees to promptly provide any such information about it and its investment in the Company that any Regulatory Agency may reasonably and customarily request in connection with any application or other filing required to be made by the Company, and undertakes that such information shall be true and accurate; provided, however, that in lieu of the foregoing, any Investor may, in its sole discretion, provide directly to the Regulatory Agency any such information that such Investor deems to be proprietary or confidential in nature.
(i) Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section 5.3 shall supersede and control with respect to any other provisions of this Agreement that may conflict with or that may result in a breach of any of the provisions described in this Section 5.3, and the provisions of this Section 5.3 shall apply, mutatis mutandis, to all of the provisions of this Agreement to the extent necessary to cause such other provisions of this Agreement to comply with this Section 5.3.
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(i) on a confidential basis, to any Representatives of the Investors that need to know such information for the purpose of assisting such Investor in connection with its monitoring of its investment in the Company; provided that the Investor shall be responsible for any breach by any such Person of the terms hereof;
(ii) on a confidential basis, to such Investor’s current or prospective limited partners and current and prospective investors; provided that (x) such disclosures are limited to
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information that is customarily provided to current or prospective limited partners in private investment funds, and (y) to the extent that compliance with the foregoing clause (x) would be impracticable (given an Investor’s relationship with its current or prospective limited partners and current and prospective investors), to such Persons that are otherwise instructed to keep such information confidential, in which case such Persons will be deemed Representatives of such Investor and such Investor shall be responsible for any breach by any such Person of the terms hereof;
(iii) to the extent required by applicable law, rule or regulation (including complying with any oral or written questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process to which a Investor is subject); provided that such Investor gives the Company prompt notice of such request(s) to the extent practicable, unless such disclosure is mandated by a state or federal freedom of information statute or regulation, so that the Company may seek an appropriate protective order or similar relief (and the Investor shall cooperate with such efforts by the Company, and shall in any event make only the minimum disclosure required by such law, rule or regulation);
(iv) to any regulatory authority to which the Investor or any of its Affiliates is subject, as long as such authority is advised of the confidential nature of such information; or
(v) if the prior written consent of the OTS shall have been obtained.
ARTICLE VI TERMINATION OF AGREEMENT
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7.1 Meeting to Vote on Participation in FDIC Resolutions Bid Process.
(a) On or about the third (3rd) anniversary of the Closing Date (the “Acquisition Policy Review Date”), the Company shall call a special meeting of the holders of Voting Common Stock, to be held as soon as practicable following the Acquisition Policy Review Date, for the purpose of allowing such holders to consider a New Acquisition Policy Resolution. For the purpose of this section, “New Acquisition Policy Resolution” means a resolution recommending that the Board of Directors vote to suspend participation by the Bank as a bidder in the FDIC resolutions bid process.
(b) If a majority of the shares of Common Stock cast at such special meeting approve a New Acquisition Policy Resolution, the Bank shall promptly cease to participate as a bidder in the FDIC resolutions bid process for as long as any Investor remains subject to the transfer restrictions imposed by the FDIC Policy Statement.
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If to the Company, to:
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
With a copy (which will not constitute notice) to:
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
If to any Investor, to:
the address, facsimile number or electronic mail address set forth next to such Investor’s name on Schedule I hereto (which address, facsimile number or electronic mail address may be changed by the Investor by notice provided to the Company).
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER COMPLIES WITH THE PROVISIONS OF A SHAREHOLDERS’ AGREEMENT DATED AS OF JUNE 3, 2010, AS SUCH MAY BE AMENDED FROM TIME TO TIME (THE “SHAREHOLDERS’ AGREEMENT”), A COPY OF WHICH IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF THE COMPANY. NO TRANSFER OF THE SECURITIES WILL BE MADE ON THE BOOKS OF THE COMPANY UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF SUCH SHAREHOLDERS’ AGREEMENT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO OTHER RIGHTS AND OBLIGATIONS AS SET FORTH IN THE SHAREHOLDERS’ AGREEMENT AND ARTICLES OF INCORPORATION.
To the extent the circumstances or provisions requiring the above legend have ceased to be effective, the Company will, upon request, reissue certificates without the applicable legend.
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any transfer of Shares on the Company’s books if in the reasonable, good faith judgment of the Company, registering such transfer would cause the Company to become subject to registration pursuant to the Exchange Act.
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matter hereof other than those expressly set forth or referred to herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter.
7.15 Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. ANY ACTION OR PROCEEDING TO ENFORCE ANY PROVISION OF, OR BASED ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT EXCLUSIVELY IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE OR (TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFOR) ANY COURT OF THE UNITED STATES LOCATED IN THE STATE OF DELAWARE OR THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
[SIGNATURE BLOCKS ON FOLLOWING PAGES]
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COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |
Title: | Chairman | |
INVESTORS |
Shareholders’ Agreement
COMPANY: | ||||
HCBF HOLDING COMPANY, INC. | ||||
By: | ||||
Title: | ||||
INVESTORS: | ||||
TRIDENT V DEPOSITORY HOLDINGS, L.P. | ||||
By: | Trident V GP Depository Holdings, LLC | |||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Vice President | |||
TRIDENT V PARALLEL DEPOSITORY HOLDINGS, L.P. | ||||
By: | Trident V GP Parallel Depository Holdings, LLC | |||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Vice President | |||
TRIDENT V PF DEPOSITORY HOLDINGS, LLC | ||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Vice President |
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: | ||
Title: |
INVESTOR: | ||
Xxxxx Investment Associates VIII, L.P. | ||
By: Xxxxx XX VIII, L.P., its General Partner | ||
By: Xxxxx XX VIII, LLC, its General Partner | ||
By: | /s/ Xxxxx X. Xxxxxxx, XX | |
Name: Xxxxx X. Xxxxxxx, XX | ||
Title: Managing Member |
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTOR: | ||
KEP VI, LLC | ||
By: | /s/ Xxxxx X. Xxxxxxx, XX | |
Name: Xxxxx X. Xxxxxxx, XX | ||
Title: Managing Member |
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
TINICUM CAPITAL PARTNERS II, L.P. | ||
By: | TINICUM LANTERN II L.L.C., its General Partner | |
By: | /s/ Xxxx X. Xxxxxx | |
Name: Xxxx X. Xxxxxx | ||
Title: Member |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
TINICUM CAPITAL PARTNERS II PARALLEL FUND, L.P. | ||
By: | TINICUM LANTERN II L.L.C., its General Partner | |
By: | /s/ Xxxx X. Xxxxxx | |
Name: Xxxx X. Xxxxxx | ||
Title: Member |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
TINICUM CAPITAL PARTNERS II EXECUTIVE FUND, L.L.C. | ||
By: | TINICUM LANTERN II L.L.C., its Manager | |
By: | /s/ Xxxx X. Xxxxxx | |
Name: Xxxx X. Xxxxxx | ||
Title: Member |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
TINICUM CAPITAL PARTNERS II ADD-ON FUND, L.P. | ||
By: | TINICUM LANTERN II ADD-ON L.L.C., its General Partner | |
By: | /s/ Xxxx X. Xxxxxx | |
Name: Xxxx X. Xxxxxx | ||
Title: Member |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
TINICUM CAPITAL PARTNERS II ADD-ON PARALLEL FUND, L.P. | ||
By: | TINICUM LANTERN II ADD-ON L.L.C., its General Partner | |
By: | /s/ Xxxx X. Xxxxxx | |
Name: Xxxx X. Xxxxxx | ||
Title: Member |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
HarbourVest Partners VIII-Buyout Fund L.P. | ||
By: | HarbourVest VIII-Buyout Associates L.P. | |
Its General Partner | ||
By: | HarbourVest VIII-Buyout Associates LLC | |
Its General Partner | ||
By: | HarbourVest Partners, LLC | |
Its Managing Member |
By: | /s/ Xxxxxx X. Xxxxxxxxx | |
Xxxxxx X. Xxxxxxxxx | ||
Managing Director |
HarbourVest Partners 2007 Direct Fund L.P. | ||
By: | HarbourVest 2007 Direct Associates L.P. | |
Its General Partner | ||
By: | HarbourVest 2007 Direct Associates LLC | |
Its General Partner | ||
By: | HarbourVest Partners, LLC | |
Its Managing Member |
By: | /s/ Xxxxxx X. Xxxxxxxxx | |
Xxxxxx X. Xxxxxxxxx | ||
Managing Director |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
Name: | State of Wisconsin Investment Board |
By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
Name: Xxxxxxx X. Xxxxxxxxx | ||
Title: Managing Director - Private Markets |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS: |
INVESTURE EVERGREEN FUND, LP – 2010 SPECIAL TERM TRANCHE |
By: | /s/ Xxxxxxx X. Xxxx, Xx. |
Title: | Xxxxxxx X. Xxxx, Xx., Managing Director |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
Name: | Xxxxxxx X. Xxxxx, Xx. |
Signature: | /s/ Xxxxxxx X. Xxxxx |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
Name: | J. Xxx Xxxxxxx Xx |
Signature: | /s/ J. Xxx Xxxxxxx Xx |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
Name: | Xxxxxxx X. Xxxxx, Xx. |
Signature: | /s/ Xxxxxxx X. Xxxxx, Xx. |
HCBF Holding Company, Inc.
Shareholders’ Agreement
COMPANY: | ||
HCBF HOLDING COMPANY, INC. | ||
By: |
Title: |
INVESTORS |
Name: | Xxxxxxx X Xxxxx |
Signature: | /s/ Xxxxxxx X Xxxxx |
HCBF Holding Company, Inc.
Shareholders’ Agreement
EXHIBIT A
PLEDGE NOTICE
[Date]
[Address]
Attention: Chairman
Gentlemen:
Reference is hereby made to the Shareholders’ Agreement, dated as of , 2010 (the “Shareholders’ Agreement”), as it may be amended from time to time, by and among HCBF Holding Company, Inc. (the “Company”) and certain shareholders of the Company. Terms with their initial letter capitalized have the meanings given them in the Shareholders’ Agreement.
Pursuant the Shareholders’ Agreement, the undersigned Investor hereby notifies the Company of the Investor’s intention to pledge Shares represented by certificate(s) number(s) (the “Pledged Share(s)”) to (“Pledgee”). Concurrently with the pledge, Pledgee has agreed to sign an agreement substantially in the form of Exhibit B to the Shareholders’ Agreement that the Pledged Share(s) are subject to the Shareholders’ Agreement and will not be sold, transferred or otherwise disposed of except according to the Shareholders’ Agreement.
Sincerely, | |
Investor |
EXHIBIT B
ACKNOWLEDGMENT AND AGREEMENT OF PLEDGEE
The undersigned pledgee (“Pledgee”) of shares (the “Shares”) of HCBF Holding Company, Inc. (“Company”) hereby acknowledges that the Shares of the Company pledged or to be pledged to the Pledgee (the “Pledged Shares”) are subject to that certain Shareholders’ Agreement, dated as of , 2010 (the “Shareholders’ Agreement”), as it may be amended from time to time, by and among the Company and certain shareholders of the Company, a copy of which has been furnished to the Pledgee who acknowledges receipt thereof. Pledgee further acknowledges that under the Shareholders’ Agreement, the Pledged Shares are subject to certain restrictions on the sale, transfer or other disposition thereof.
Pledgee hereby agrees (i) to hold the Pledged Shares subject to the Shareholders’ Agreement and the restrictions and conditions contained therein, and (ii) not to sell, transfer or otherwise to dispose of the Pledged Shares except according to the Shareholders’ Agreement.
Dated , 20 .
PLEDGEE: | ||
NAME: |
TITLE (if applicable): |
EXHIBIT C
FORM OF REGISTRATION RIGHTS AGREEMENT
FORM OF
REGISTRATION RIGHTS AGREEMENT
dated as of , 20
between
HCBF HOLDING COMPANY, INC.
and
CERTAIN STOCKHOLDERS OF
HCBF HOLDING COMPANY, INC.
TABLE OF CONTENTS
SECTION 1. | DEFINITIONS | 1 |
1.1. | Defined Terms | 1 |
1.2. | General Interpretive Principles | 4 |
SECTION 2. | REGISTRATION RIGHTS | 4 |
2.1. | Requested Registrations | 4 |
2.2. | Incidental Registrations | 8 |
2.3. | Black-out Periods | 9 |
2.4. | Registration Procedures | 10 |
2.5. | Underwritten Offerings | 14 |
2.6. | No Inconsistent Agreements; Additional Rights | 15 |
2.7. | Registration Expenses | 15 |
2.8. | Indemnification | 16 |
2.9. | Rules 144 and 144A | 19 |
SECTION 3. | MISCELLANEOUS | 19 |
3.1. | Notices | 19 |
3.2. | Successors, Assigns and Transferees | 20 |
3.3. | Governing Law; Service of Process; Consent to Jurisdiction | 20 |
3.4. | Headings | 20 |
3.5. | Severability | 20 |
3.6. | Amendment; Waiver | 21 |
3.7. | Counterparts | 21 |
3.8. | Recapitalizations, Exchanges Affecting the Registrable Securities | 21 |
3.9. | Term | 22 |
Schedule I | ||
Schedule II | ||
Schedule 2.1 |
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of , 20 , by and between HCBF Holding Company, Inc., a Florida corporation (the “Company”), and each of the Persons named on the signature pages hereto (each, an “Investor”).
A. WHEREAS, the Company and the Investors have entered into (i) subscription agreements (the “Subscription Agreements”) pursuant to which the Investors have received shares of common stock of the Company and (ii) the Shareholders’ Agreement dated as of May , 2010 (the “Shareholders’ Agreement”); and
B. WHEREAS, as an inducement to the Investors to enter into the Subscription Agreements and the Shareholders’ Agreement, the Company has agreed to provide the registration rights set forth in this Agreement.
“Adverse Disclosure” means public disclosure of material non-public information, which disclosure in the good faith judgment of the chief executive officer or chief financial officer of the Company after consultation with counsel to the Company (i) would be required to be made in any Registration Statement so that such Registration Statement would not be materially misleading, (ii) would not be required to be made at such time but for the filing of such Registration Statement and (iii) the Company has a bona fide business purpose for not disclosing publicly.
“Agreement” has the meaning set forth in the preamble hereto.
“Business Day” means any day except Saturday, Sunday or a day on which banking institutions in New York, New York, generally are authorized or required by law or other governmental action to close.
“Company” has the meaning set forth in the preamble and shall include the Company’s successors by merger, acquisition, reorganization or otherwise.
“Demand Investor” has the meaning set forth in Section 2.1(a).
“Demand Registration” has the meaning set forth in Section 2.1(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time.
“FINRA” means the Financial Industry Regulatory Authority.
“holder” or “holders” means any holder or holders of Registrable Securities who is/are a party hereto or who otherwise agrees/agree in writing to be bound by the provisions of this Agreement pursuant to Section 3.2.
“Incidental Registration” has the meaning set forth in Section 2.2(a).
“Investor” has the meaning set forth in the preamble hereto.
“Loss” has the meaning set forth in Section 2.8(a).
“Management Investors” means those employees of the Company or its subsidiaries listed on Schedule I hereto.
“Person” means any individual, firm, limited liability company or partnership, joint venture, corporation, joint stock company, trust or unincorporated organization, incorporated or unincorporated association, government (or any department, agency or political subdivision thereof) or other entity of any kind.
“Piggyback Election Notice” has the meaning set forth in Section 2.1(c).
“Piggyback Election Period” has the meaning set forth in Section 2.1(c).
“Piggyback Notice” has the meaning set forth in Section 2.1(c).
“Prospectus” means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus and all material incorporated by reference in such prospectus.
“Public Offering Event” means the first underwritten registered public offering of Shares pursuant to a Registration Statement.
“Registrable Securities” means the Shares of the Company issued to the Investor pursuant to the Subscription Agreements (including any Shares issued upon the exercise or conversion thereof); provided, however, that any of the foregoing Shares shall cease to be “Registrable Securities” to the extent (i) a Registration Statement with respect to their sale has been declared effective under the Securities Act and they have been disposed of pursuant to such Registration Statement, (ii) they have been distributed pursuant to Rule 144 (or any similar provision then in force) under the Securities Act or (iii) they shall have been otherwise transferred and (A) new certificates for them not bearing a legend restricting transfer under the Securities Act shall have been delivered by the Company and (B) may be freely resold (without
2 |
volume or method of sale restrictions, public information requirements or other conditions) without registration under the Securities Act. For purposes of this Agreement, a “class” of Registrable Securities shall mean all Shares with the same terms (it being understood and agreed that the Company’s voting common stock and non-voting common stock shall be deemed a single class for all purposes hereunder) and a “percentage” (or a “majority") of the Registrable Securities (or, where applicable, of any other securities) shall be determined based on the number of Shares.
“registration” means a registration of the Company’s securities for sale to the public under a Registration Statement.
“Registration Statement” means a registration statement filed by the Company with the SEC in compliance with the Securities Act for a public offering and sale of Shares or other securities of the Company (other than a registration statement on Form S-4 or Form S-8 (or any similar successor form)) or in connection with (i) a management equity plan or stock option plan or any other management or employee benefit plan or other equity compensation agreement of the Company or securities issued or issuable pursuant to any such plan, or (ii) a dividend reinvestment plan.
“Requested Registration” means a Demand Registration or a Shelf Demand Registration.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time.
“Shareholders’ Agreement” has the meaning set forth in the recitals hereto.
“Shares” means the capital stock of the Company (whether common stock or preferred stock, and whether outstanding or issued or acquired hereafter, including all shares of capital stock of the Company issuable upon the exercise of warrants, options or other rights to acquire shares of capital stock of the Company, or upon the conversion or exchange of any security).
“Shelf Demand Registration” has the meaning set forth in Section 2.1(b).
“Shelf Registration Statement” means a Registration Statement of the Company filed with the SEC on Form S-3 (or any successor form or other appropriate form under the Securities Act) for an offering to be made on a continuous or delayed basis pursuant to Rule 415 under the Act (or any similar rule that may be adopted by the SEC) covering the Registrable Securities.
“Subscription Agreements” has the meaning set forth in the recitals hereto.
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“Underwritten Offering” means a registration in which securities of the Company are sold to an underwriter or underwriters on a firm commitment basis for reoffering to the public.
“WKSI” has the meaning set forth in Section 2.5(e).
SECTION 2. REGISTRATION RIGHTS
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through brokers or agents, which may include sales over the internet) by the holders of Registrable Securities included therein. Any such Shelf Demand Registration shall be subject to piggyback rights as described under Section 2.1(c) and any limitations set forth in this Agreement.
(i) Upon its receipt of notice of a Requested Registration, the Company shall promptly provide written notice (the “Piggyback Notice”) to each Investor. Such Piggyback Notice shall set forth the principal terms and conditions of the registration, including the proposed offering price (or range of offering prices) and the anticipated filing date of the Registration Statement. Each Investor shall have a period of ten (10) Business Days from the date the Piggyback Notice is delivered to such Investor (the “Piggyback Election Period”) within which to elect to include all or a portion of its Registrable Securities at the price and upon the terms specified in the Piggyback Notice, by delivering an irrevocable written notice (the “Piggyback Election Notice”) to the Company. Subject to Section 2.1(i), the Company shall include in such Registration Statement all such Registrable Securities that are the subject of Piggyback Election Notices in accordance with this Section 2.1(c). If any Investor does not deliver a Piggyback Election Notice within the Piggyback Election Period, such Investor shall be deemed to have irrevocably waived any and all rights to participate in the sale under the related Registration Statement (but not with respect to future proposed registrations).
(ii) Subject to Section 2.1 (i) below, the Company may elect to include in any Requested Registration additional securities of the class or classes of the Registrable Securities to be registered hereunder, including securities to be sold for the Company’s own account or for the account of Persons who are not holders of Registrable Securities.
5 |
governmental entity for any reason, unless such order or requirement is lifted and the Registration Statement becomes effective, (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with the offering and sale of the Registrable Securities under such Registration Statement are not satisfied or waived or (iv) the Demand Investor requesting such Demand Registration and its affiliates are not able to register and sell at least 80% of the Registrable Securities requested to be included by such Investor in such Demand Registration.
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underwriters for the offering subject to the right of the Company to select one co-managing underwriter reasonably acceptable to such holders.
(ii) In the case of an Underwritten Offering, the aggregate number of Registrable Securities to be included in a proposed registration shall not exceed the number of Registrable Securities that the managing underwriters in good faith advise the Company in writing that can be sold in such offering without being likely to have a material and adverse effect on the price, timing or distribution of Shares offered or the market for such Shares.
(i) first, to the holders desiring to participate in such registration, pro rata based on the amount of Registrable Securities owned by each such holder (but, for any holder, not to exceed the amount requested to be included in such holder’s election notice);
(ii) second, to the Company for any Shares that it proposes to issue and sell for its own account; and
(iii) thereafter, to any other Persons for whom the Company is obligated to register Shares pursuant to other registration rights agreements.
Notwithstanding the foregoing, a Management Investor shall not be entitled to participate in any such registration to the extent that the managing underwriter or underwriters (or, in the case of a Requested Registration not being underwritten, the holders of a majority of a class of Registrable Securities included in such Registration Statement) has advised in writing (with a copy to each affected Person requesting registration of Registrable Securities) that it has determined in good faith (taking into account the management position and the extent of holdings of such Management Investor) that the participation of such Management Investor would likely have a significant adverse effect on the price, timing or distribution of the class of securities offered or the market for the class of securities offered, it being understood and agreed that there shall be included in such registration that number of shares of such Management Investor (up to the pro rata amount specified in clause (i) above) which can be sold in such offering without having a significant adverse effect on the price, timing or distribution of the class of securities offered or the market for the class of securities offered.
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2.2. Incidental Registrations.
(ii) Subject to Section 2.2(b), the Company shall include in such Registration Statement all such Registrable Securities that are the subject of Piggyback Election Notices in accordance with Section 2.1(c). If at any time after giving written notice of its intention to conduct an Incidental Registration and prior to the effective date of the Registration Statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to each holder of Registrable Securities and, (x) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such Incidental Registration, and (y) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Securities for the same period as the delay in registering such other securities.
(iii) If the offering pursuant to an Incidental Registration is to be an Underwritten Offering, then each holder submitting a Piggyback Election Notice with respect to such registration must, and the Company shall make such arrangements with the underwriters so that each such holder may, participate in such Underwritten Offering on the same terms as the Company and other Persons selling securities in such Underwritten Offering. If the offering pursuant to such registration is to be on any other basis, then each holder that submitted a Piggyback Election Notice for an Incidental Registration must participate in such offering on such basis.
(iv) Each holder of Registrable Securities shall be permitted to withdraw all or part of such holder’s Registrable Securities from an Incidental Registration at any time.
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(i) first, to the Company for any Shares that it proposes to issue and sell for its own account;
(ii) second, to the holders desiring to participate in such registration, pro rata based on the amount of Registrable Securities owned by each such holder (but, for any Investor, not to exceed the amount requested to be included in such Investor’s election notice); and
(iii) thereafter, to any other Persons for whom the Company is obligated to register Registrable Securities pursuant to other registration rights agreements.
Notwithstanding the foregoing, a Management Investor shall not be entitled to participate in any such registration to the extent that the managing underwriter or underwriters of any proposed Underwritten Offering in an Incidental Registration has advised in writing (with a copy to each affected Person requesting registration of Registrable Securities) that it has determined in good faith (taking into account the management position and the extent of holdings of such Management Investor) that the participation of such Management Investor would likely have a significant adverse effect on the price, timing or distribution of the class of securities offered or the market for the class of securities offered, it being understood and agreed that there shall be included in such registration that number of shares of such Management Investor (up to the pro rata amount specified in clause (ii) above) which can be sold in such offering without having a significant adverse effect on the price, timing or distribution of the class of securities offered or the market for the class of securities offered.
(a) Black-out Periods for Holders. In the event of a registration by the Company involving the offering and sale by the Company of equity securities or securities convertible into or exchangeable for its equity securities, the holders of Registrable Securities agree, if requested by the Company (or, in the case of an Underwritten Offering, by the managing underwriter or underwriters), not to effect any public sale or distribution (including any sale pursuant to Rule 144 under the Securities Act) of any securities (except, in each case, as part of the applicable registration, if permitted) which securities are the same as or similar to those being registered in connection with such registration, or which are convertible into or exchangeable or exercisable for such securities, during the period beginning seven days before, and ending 90 days (or such lesser period as may be permitted by the Company or such managing underwriter or underwriters) after, the effective date of the Registration Statement filed in connection with such registration, to the extent such holders are timely notified in writing by the Company or the managing underwriter or underwriters.
(b) Black-out Period for the Company and Others. In the case of a Requested Registration, the Company agrees, if requested by the holders of a majority of such class of Registrable Securities to be sold pursuant to such registration (or, in the case of an Underwritten Offering, by the managing underwriter or underwriters in such Underwritten Offering), not to effect any public sale or distribution of any securities which are the same as or similar to those being registered, or which are convertible into or exchangeable or exercisable for such securities, during the period beginning seven days before, and ending 90 days (or such lesser period as may
9 |
be permitted by the holders of a majority of the Registrable Securities to be sold pursuant to such registration (or, in the case of an Underwritten Offering, by the managing underwriter or underwriters in such Underwritten Offering) after, the effective date of the Registration Statement filed in connection with such registration (or, in the case of an Underwritten Offering under the Shelf Registration, the date of the closing under the underwriting agreement in connection therewith). Notwithstanding the foregoing, the Company may effect a public sale or distribution of securities of the type described above and during the periods described above if the same (A) is made pursuant to registrations on Forms S-4 or S-8 or any successor form to such forms, or (B) as part of any registration of securities for offering and sale to employees or directors of the Company pursuant to any employee stock plan or other employee benefit plan arrangement.
(a) In connection with the Company’s registration obligations in this Agreement, the Company will, subject to the limitations set forth herein, use its reasonable best efforts to effect any such registration so as to permit the sale of the applicable Registrable Securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable, and in connection therewith the Company will:
(i) before filing a Registration Statement or Prospectus, or any amendments or supplements thereto and in connection therewith, furnish to the underwriter or underwriters, if any, and to each participating holder, copies of all documents prepared to be filed, which documents will be subject to the review of such underwriters and such holders and their respective counsel;
(ii) prepare and file with the SEC such amendments or supplements to the applicable Registration Statement or Prospectus as may be (A) reasonably requested by any participating holder (to the extent such request relates to information relating to such holder) or (B) necessary to keep such registration effective for the period of time required by this Agreement;
(iii) notify the selling holders of Registrable Securities and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective and when the applicable Prospectus or any amendment or supplement thereto has been filed, (B) of any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Registration Statement or Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threat of any proceedings for such purposes and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threat of any proceeding for such purpose;
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(iv) promptly notify each selling holder of Registrable Securities and the managing underwriter or underwriters, if any, when the Company becomes aware of the happening of any event as a result of which the applicable Registration Statement or Prospectus (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of the Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(v) make every reasonable effort to prevent or obtain at the earliest possible moment the withdrawal of any stop order with respect to the applicable Registration Statement or other order suspending the use of any preliminary or final Prospectus;
(vi) promptly incorporate in a Prospectus supplement or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters, if any, or the holders of a majority of the Registrable Securities included therein agree should be included therein relating to the plan of distribution with respect to such Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(vii) furnish to each selling holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as such holder or managing underwriter may reasonably request of the applicable Registration Statement;
(viii) deliver to each selling holder of Registrable Securities and each managing underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) as such holder or managing underwriter may reasonably request (it being understood that the Company consents to the use of the Prospectus by each of the selling holders of Registrable Securities and the underwriter or underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus);
(ix) on or prior to the date on which the applicable Registration Statement is declared effective, use its reasonable best efforts to register or qualify such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of each state and other jurisdiction of the United States, as any such selling holder or underwriter, if any, or their respective counsel reasonably requests in writing, and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect so as to permit the commencement and continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Registrable Securities covered by the Registration Statement; provided, however, that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;
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(x) cooperate with the selling holders of Registrable Securities and the managing underwriter, underwriters or agent, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends;
(xi) use its reasonable best efforts to cause the Registrable Securities 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 thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which certificates shall be in a form eligible for deposit with The Depository Trust Company;
(xiii) obtain for delivery to the holders of each class of Registrable Securities being registered and to the underwriter or underwriters, if any, an opinion or opinions from counsel for the Company dated the effective date of the Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, which counsel and opinions shall be reasonably satisfactory to the holders of a majority of the Registrable Securities being registered and underwriter or underwriters, if any, and their respective counsel;
(xiv) in the case of an Underwritten Offering, obtain for delivery to the Company and the underwriter or underwriters, if any, with copies to the holders of Registrable Securities included in such registration, a cold comfort letter from the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xv) cooperate with each seller of Registrable Securities and each underwriter or agent, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(xvi) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders, as soon as reasonably practicable (but not more than 15 months) after the effective date of the applicable Registration Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act;
(xvii) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;
(xviii) cause all Registrable Securities of a class covered by the applicable Registration Statement to be listed on each securities exchange on which any of the Company’s
12 |
securities of such class are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s securities of such class are then quoted;
(xix) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the holders of the Registrable Securities covered by the applicable Registration Statement, by any managing underwriter or underwriters participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by such sellers or any such managing underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility (subject to the entry by each party referred to in this clause (xix) into customary confidentiality agreements in a form reasonably acceptable to the Company); and
(xx) in the case of an Underwritten Offering, cause the senior executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in such Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.
(b) The Company may require each selling holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such Securities and such other information relating to such holder and its ownership of the applicable Registrable Securities as the Company may from time to time reasonably request. Each holder of Registrable Securities agrees to furnish such information to the Company and to cooperate with the Company as necessary to enable the Company to comply with the provisions of this Agreement. The Company shall have the right to exclude any holder that does not comply with the preceding sentence from the applicable registration.
(c) Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.4(a)(iv), such holder will discontinue disposition of its Registrable Securities pursuant to such Registration Statement until such holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.4(a)(iv), or until such holder is advised in writing by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus and, if so directed by the Company, such holder will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such holder’s possession, of the Prospectus covering such Registrable Securities which are current at the time of the receipt of such notice. In the event that the Company shall give any such notice in respect of a Requested Registration, the period during which the applicable Registration Statement is required to be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement either receives
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the copies of the supplemented or amended Prospectus contemplated by Section 2.4(a)(iv) or is advised in writing by the Company that the use of the Prospectus may be resumed.
(e) To the extent the Company is a well known seasoned issuer (as defined in Rule 405 under the Securities Act) (a “WKSI”) at the time any Investor makes a request that a Shelf Registration Statement be filed pursuant to Section 2.1, the Company shall file a Shelf
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Registration Statement which covers those Registrable Securities which are requested to be registered. The Company shall use its commercially reasonable best efforts (taking into consideration the Company’s status as a regulated financial institution) to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which such Shelf Registration Statement is required to remain effective pursuant to Section 2.1(f) hereof. If the Company does not pay the filing fee covering the Registrable Securities at the time the Shelf Registration Statement is filed, the Company agrees to pay such fee at such time or times as the Registrable Securities are to be sold. If at any time when the Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI, the Company shall use its reasonable best efforts to file a shelf registration statement on Form S-3 and, if such form is not available, Form S-l, and keep such registration statement effective during the period during which such registration statement is required to be kept effective pursuant to Section 2.1(f) hereof.
(f) The Company agrees not to file or make any amendment to any registration statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in connection therewith, which refers to any holder of Registrable Securities, or otherwise identifies any holder of Registrable Securities as the holder of any Registrable Securities, without the consent of such holder (such consent not to be unreasonably withheld or delayed), unless such disclosure is required by law.
(g) 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 Securities, without the prior written consent of the holders of a majority of the Registrable Securities included therein and any underwriter.
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Securities. In addition, in all cases (including all Requested Registrations) 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 audit and the fees and expenses of any Person, including special experts, retained by the Company.
(b) The Company shall not be required to pay any other costs or expenses in the course of the transactions contemplated hereby, including underwriting discounts and commissions and transfer taxes attributable to the sale of Registrable Securities and the fees and expenses of counsel to one or more of the holders and counsel to the underwriters other than pursuant to clause (ii) of paragraph (a) above; provided, however, that in connection with each registration initiated hereunder, the Company shall reimburse the holders covered by such registration for the reasonable fees and disbursements of one law firm chosen by the Demand Investor requesting such registration, if any, and to the extent such registration is not a Demand Registration, one law firm that is reasonably acceptable to the Company and chosen by holders representing a majority of the number of shares of Registrable Securities included in such registration.
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Company (within the meaning of the Securities Act and the Exchange Act) from and against any Losses resulting from any untrue statement of a material fact or any omission of a material fact required to be stated in the Registration Statement under which such Registrable Securities were registered under the Securities Act (including any final, preliminary or summary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein), or necessary to make the statements therein (in the case of a Prospectus or preliminary Prospectus, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that such untrue statement or omission had been contained in any information furnished in writing by such selling holder to the Company specifically for inclusion in such Registration Statement and was not corrected in a subsequent writing prior to or concurrently with the sale of the Registrable Securities to the Person asserting such loss, claim, damage, liability or expense. The Company and the holders of the Registrable Securities in their capacities as stockholders (but not in their capacities as officers or directors of the Company) hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated therewith are statements specifically relating to (i) transactions between such holder and its affiliates, on the one hand, and the Company, on the other hand, (b) the beneficial ownership of shares of common stock by such holder and its affiliates and (c) the name and address of such holder. If any additional information about such holder or the plan of distribution (other than for an Underwritten Offering) is required by law to be disclosed in any such document, then such holder shall not unreasonably withhold its agreement referred to in the immediately preceding sentence of this Section 2.8(b). Such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director or officer and shall survive the transfer of such Registrable Securities by such holder. In no event shall the liability of any selling holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net amount of proceeds (i.e., net of expenses, underwriting discounts and commissions) actually received by such holder under the sale of the Registrable Securities giving rise to such indemnification obligation.
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party, the indemnifying party will not be subject to any liability for any settlement made without its consent, but such consent may not be unreasonably withheld; provided, however, that an indemnifying party shall not be required to consent to any settlement involving the imposition of equitable remedies or involving the imposition of any material obligations on such indemnifying party other than financial obligations for which such indemnified party will be indemnified hereunder. If the indemnifying party assumes the defense, the indemnifying party shall have the right to settle such action without the consent of the indemnified party; provided, however, that the indemnifying party shall be required to obtain such consent if the settlement includes any admission of wrongdoing on the part of the indemnified party or any restriction on the indemnified party or its officers or directors or any other non-monetary remedy. No indemnifying party shall consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of an unconditional release from all liability in respect to such claim or litigation. The indemnifying party or parties shall not, in connection with any proceeding or related proceedings, be liable for the reasonable fees, disbursements and other charges of more than one separate firm at any one time from all such indemnified party or parties unless (x) the employment of more than one counsel has been authorized in writing by the indemnifying party or parties or (y) a conflict or potential conflict exists or may exist (based on advice of counsel to an indemnified party) between such indemnified party and the other indemnified parties in each of which cases the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel or counsels.
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indemnified party to the full extent provided in Sections 2.8(a) and 2.8(b) hereof without regard to the relative fault of said indemnifying parties or indemnified party.
(a) if to the Company to:
HCBF Holding Company, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
With a copy (which will not constitute notice) to:
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
(b) if to any Investor, to:
the address, facsimile number or electronic mail address set forth next to such Investor’s name on Schedule II hereto (which address, facsimile number or electronic mail address may be changed by the Investor by notice provided to the Company).
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Each holder, by written notice given to the Company in accordance with this Section 3.1 may change the address to which notices, other communications or documents are to be sent to such holder. All notices, other communications or documents shall be deemed to have been duly given: (i) at the time delivered by hand, if personally delivered; (ii) when receipt is acknowledged in writing by addressee, if by facsimile transmission; (iii) five business days after having been deposited in the mail, postage prepaid, if mailed by first class mail; and (iv) on the first business day with respect to which a reputable air courier guarantees delivery; provided, however, that notices of a change of address shall be effective only upon receipt.
(b) This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
3.3. Governing Law; Service of Process; Consent to Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. ANY ACTION OR PROCEEDING TO ENFORCE ANY PROVISION OF, OR BASED ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT EXCLUSIVELY IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE OR (TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFOR) ANY COURT OF THE UNITED STATES LOCATED IN THE STATE OF DELAWARE OR THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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provision in such jurisdiction, and this agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained therein.
(a) This Agreement may not be amended or modified and waivers and consents to departures from the provisions hereof may not be given, except by an instrument or instruments in writing making specific reference to this Agreement and signed by the Company and the holders of a majority of Registrable Securities of each class then outstanding; provided, however, that no amendment modification, waiver or consent may adversely affect the rights of a Demand Investor hereunder that are in addition to those of the other Investors without such Demand Investor’s written consent; provided further, that no such amendment, modification, waiver or consent shall (i) without an Investor’s written consent, affect adversely such Investor’s rights hereunder in a discriminatory manner inconsistent with its effects on the rights of other Investors hereunder and (ii) without each Investor’s written consent, reduce piggyback rights pursuant to Section 2.1(c) (including in respect of a Requested Registration or Incidental Registration). Each holder of any Registrable Securities at the time or thereafter outstanding shall be bound by any amendment, modification, waiver or consent authorized by this Section 3.6(a), whether or not such Registrable Securities shall have been marked accordingly.
(b) The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. Except as otherwise expressly provided herein, no failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder, or otherwise available in respect hereof at law or in equity, shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
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[SIGNATURE PAGE FOLLOWS]
22 |
HCBF HOLDING COMPANY, INC. | ||
By: | ||
Name: | ||
Title: | ||
THE INVESTORS: |
Address:
SCHEDULE I TO THE REGISTRATION RIGHTS AGREEMENT
MANAGEMENT INVESTORS
Mr. Xxxxxxx Xxxxx, Sr.
Mr. J. Xxx Xxxxxxx, Xx.
Mr. Xxxxxxx Xxxxx, Jr.
Xx. Xxxxxxx Xxxxx
SCHEDULE II TO THE REGISTRATION RIGHTS AGREEMENT
LIST OF INVESTORS
INVESTORS | ADDRESS | |
Mr. Xxxxxxx Xxxxx, Sr. | HCBF Holding Company, Inc. | |
Mr. J. Xxx Xxxxxxx, Xx. | 000 Xxxxx Xxxxxx Xxxxxx | |
Mr. Xxxxxxx Xxxxx, Jr. | Xxxx Xxxxxx, XX 00000 | |
Xx. Xxxxxxx Xxxxx | Facsimile: (000) 000-0000 | |
GE Asset Management | GE Asset Management 0000 Xxxxxx Xxxxxx Xxxxxxxx, XX 00000 Attention: Managing Director Facsimile: (000) 000-0000 | |
HarbourVest Partners VIII - Buyout Fund LP | c/o HarbourVest Partners, LLC | |
HarbourVest Partners 2007 Direct Fund LP | Xxx Xxxxxxxxx Xxxxxx - 00xx Xxxxx Xxxxxx, XX 00000 Attention: Vice President Facsimile: (000) 000-0000
c/o Investure LLC | |
Investure Evergreen Fund, LP - 2010 Special Term | 000 Xxxxxxx Xxxxxx, Xxxxx X | |
Xxxxxxx | Xxxxxxxxxxxxxxx, XX 00000 Attention: Xxxxxx X. “Xxx” Xxxxxxxx Facsimile: (000) 000-0000 | |
Xxxxx Investment Associates VIII, L.P. KEP VI, LLC |
c/o Kelso & Company 000 Xxxx Xxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Managing Director Facsimile: (000) 000-0000 | |
Lockheed Xxxxxx Corporation Master Retirement Trust | c/o Lockheed Xxxxxx Investment Management Company 0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx Xxxxxxxx, XX 00000 Attention: Portfolio Manager Facsimile: (000) 000-0000 | |
State of Wisconsin Investment Board | Lake Terrace 000 Xxxx Xxxxxx Xxxxxx Xxxxxxx, XX 00000 Attention: Assistant Portfolio Manager Facsimile: (000) 000-0000 | |
Tinicum Capital Partners II, L.P. | c/o Tinicum Incorporated | |
Tinicum Capital Partners II Parallel Fund, L.P. | 000 Xxxxx Xxxxxx | |
Tinicum Capital Partners II Executive Fund, LLC | Xxx Xxxx, XX 00000 | |
Tinicum Capital Partners II Add-On Fund, L.P. | Attention: Member | |
Tinicum Capital Partners II Add-On Parallel Fund, L.P. | Facsimile: (000) 000-0000 |
Trident V Depository Holdings, L.P. | c/o Stone Point Capital LLC | |
Trident V Parallel Depository Holdings, L.P. | 00 Xxxxxxxxx Xxxx | |
Trident V PF Depository Holdings, LLC | Xxxxxxxxx, XX 00000 | |
Attention: General Counsel | ||
Facsimile: (000) 000-0000 |
SCHEDULE 2.1 TO THE REISTRATION RIGHTS AGREEMENT
DEMAND RIGHTS
DEMAND | ||
INVESTOR | RIGHTS | |
Mr. Xxxxxxx Xxxxx, Sr. | 1 | |
GE Asset Management | 1 | |
HarbourVest Partners VIII - Buyout Fund LP | 1 | |
HarbourVest Partners 2007 Direct Fund LP | ||
Investure Evergreen Fund, LP - 2010 Special Term | 1 | |
Tranche | ||
Xxxxx Investment Associates VIII, L.P. | 2 | |
KEP VI, LLC | ||
Lockheed Xxxxxx Corporation Master Retirement Trust | 1 | |
Mr. X. Xxx Xxxxxxx, Xx. | 0 | |
Xxxxx xx Xxxxxxxxx Investment Board | 1 | |
Tinicum Capital Partners II, L.P. | 1 | |
Tinicum Capital Partners II Parallel Fund, L.P. | ||
Tinicum Capital Partners II Executive Fund, LLC | ||
Tinicum Capital Partners II Add-On Fund, L.P. | ||
Tinicum Capital Partners II Add-On Parallel Fund, L.P. | ||
Trident V Depository Holdings, L.P. | 2 | |
Trident V Parallel Depository Holdings, L.P. | ||
Trident V PF Depository Holdings, LLC |
SCHEDULE I
LIST OF INVESTORS
INVESTORS | ADDRESS | |
Mr. Xxxxxxx Xxxxx, Sr. | HCBF Holding Company, Inc. | |
Mr. J. Xxx Xxxxxxx, Xx. | 000 Xxxxx Xxxxxx Xxxxxx | |
Mr. Xxxxxxx Xxxxx, Jr. | Xxxx Xxxxxx, XX 00000 | |
Xx. Xxxxxxx Xxxxx | Facsimile: (000) 000-0000 | |
GE Asset Management | GE Asset Management 0000 Xxxxxx Xxxxxx Xxxxxxxx, XX 00000 Attention: Managing Director Facsimile: (000) 000-0000 | |
HarbourVest Partners VIII - Buyout Fund LP | c/o HarbourVest Partners, LLC | |
HarbourVest Partners 2007 Direct Fund LP | Xxx Xxxxxxxxx Xxxxxx - 00xx Xxxxx Xxxxxx, XX 00000 Attention: Vice President Facsimile: (000) 000-0000
c/o Investure LLC | |
Investure Evergreen Fund, LP - 2010 Special Term | 000 Xxxxxxx Xxxxxx, Xxxxx X | |
Xxxxxxx | Xxxxxxxxxxxxxxx, XX 00000 Attention: Xxxxxx X. “Xxx” Xxxxxxxx Facsimile: (000) 000-0000 | |
Xxxxx Investment Associates VIII, L.P. KEP VI, LLC | c/o Kelso & Company 000 Xxxx Xxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Managing Director Facsimile: (000) 000-0000 | |
Lockheed Xxxxxx Corporation Master Retirement Trust | c/o Lockheed Xxxxxx Investment Management Company 0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx Xxxxxxxx, XX 00000 Attention: Portfolio Manager Facsimile: (000) 000-0000 | |
State of Wisconsin Investment Board | Lake Terrace 000 Xxxx Xxxxxx Xxxxxx Xxxxxxx, XX00000 Attention: Assistant Portfolio Manager Facsimile: (000) 000-0000 | |
Tinicum Capital Partners II, L.P. | c/o Tinicum Incorporated | |
Tinicum Capital Partners II Parallel Fund, L.P. | 000 Xxxxx Xxxxxx | |
Tinicum Capital Partners II Executive Fund, LLC | Xxx Xxxx, XX 00000 | |
Tinicum Capital Partners II Add-On Fund, L.P. | Attention: Member | |
Tinicum Capital Partners II Add-On Parallel Fund, L.P. | Facsimile: (000) 000-0000 |
Trident V Depository Holdings, L.P. | c/o Stone Point Capital LLC | |
Trident V Parallel Depository Holdings, L.P. | 00 Xxxxxxxxx Xxxx | |
Trident V PF Depository Holdings, LLC | Xxxxxxxxx, XX 00000 | |
Attention: General Counsel | ||
Facsimile: (000) 000-0000 |
SCHEDULE II
BOARD SEAT INVESTORS AS OF THE CLOSING DATE
INVESTORS | ADDRESS | |
Xxxxx Investment Associates VIII, L.P. | c/o Kelso & Company | |
KEP VI, LLC | 000 Xxxx Xxx, 00xx Xxxxx | |
Xxx Xxxx, XX 00000 | ||
Attention: Managing Director | ||
Tinicum Capital Partners II, L.P. | c/o Tinicum Incorporated | |
000 Xxxxx Xxxxxx | ||
Xxx Xxxx, XX 00000 | ||
Facsimile: (000) 000-0000 | ||
Trident V Depository Holdings, L.P. | c/o Stone Point Capital LLC | |
Trident V Parallel Depository Holdings, L.P. | 00 Xxxxxxxxx Xxxx | |
Trident V PF Depository Holdings, LLC | Xxxxxxxxx, XX 00000 | |
Attention: General Counsel | ||
Facsimile: (000) 000-0000 |