REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT
(“Agreement”) is entered into as of the 6th day of January 2009 by and among
Pacific Continental Corporation, a Oregon corporation (the “Company”), and the
person or entity named on the signature page hereto (the
“Investor”).
WHEREAS, the Company has issued shares
of its common stock to the Investor in connection with the Purchase Agreement;
and
WHEREAS, the Company has agreed to
provide certain registration rights to the Investor.
Now, therefore, in consideration of the
mutual promises and the covenants as set forth herein, the parties hereto hereby
agree as follows:
1. Definitions. Unless
the context otherwise requires, the terms defined in this Section 1 shall have
the meanings herein specified for all purposes of this Agreement, applicable to
both the singular and plural forms of any of the terms herein
defined.
“Agreement” means this
Registration Rights Agreement, as the same may be amended, modified or
supplemented in accordance with the terms hereof.
“Board” means the
Board of Directors of the Company.
“Common Stock” means
the common stock, no par value per share, of the Company, as constituted on the
date hereof, and any capital stock into which such Common Stock may thereafter
be changed, and shall also include (i) capital stock of the Company of any other
class (regardless of how denominated) issued to the holders of shares of Common
Stock upon any reclassification thereof which is not also preferred as to
dividends or assets over any other class of stock of the Company and which is
not subject to redemption and (ii) shares of common stock of any successor or
acquiring corporation received by or distributed to the holders of Common Stock
of the Company.
“Commission” means the
Securities and Exchange Commission or any other governmental body at the time
administering the Securities Act.
“Company” has the
meaning assigned to it in the introductory paragraph of this
Agreement.
“Company Securities”
has the meaning any securities proposed to be sold by the Company for its own
account in a registered public offering.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, or any successor federal
statute, and the rules and regulations promulgated thereunder, all as the same
shall be in effect from time to time..
“Excluded Forms” means
registration statements under the Securities Act, on Forms S-4 and S-8, or any
successors thereto and any form used in connection with an initial public
offering of securities.
“Investor” has the
meaning assigned to it in the introductory paragraph of this
Agreement. References to “Investors” means each of the persons or
entities that have purchased shares of Common Stock from the Company pursuant to
the Purchase Agreement.
“Person(s)” means any
individual, sole proprietorship, partnership, joint venture, trust, limited
liability company, incorporated organization, association, corporation,
institution, public benefit corporation, entity and any nation or government,
any state or other political subdivision thereof, and any entity or official
exercising executive, legislative, judicial, regulatory or administrative
functions of, or pertaining to, government.
“Purchase Agreement”
means the Common Stock Purchase Agreement of even date herewith, between the
Company and the Investor, relating to the sale by the Company and the purchase
by the Investor of the Registrable Securities.
The terms “register” “registered” and
“registration”
refer to a registration effected by preparing and filing a registration
statement on other than any of the Excluded Forms in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
“Registrable
Securities” means the Common Stock received by the Investor in the
offering under the Term Sheet and any securities of the Company issued with
respect to such Common Stock by way of a stock dividend or stock split or in
connection with a combination, recapitalization, share exchange, consolidation
or other reorganization of the Company.
“Registration
Statement” means a registration statement on other than any of the
Excluded Forms.
“Selling Expenses”
means all selling commissions, finder’s fees and stock transfer taxes applicable
to the Registrable Securities registered by the Investor and the reasonable fees
and disbursements of one counsel for all Investors.
“Securities Act” means
the Securities Act of 1933, as amended, or any successor federal statute, and
the rules and regulations promulgated thereunder, all as the same shall be in
effect from time to time.
“Term Sheet” means the
Term Sheet set forth in the private placement disclosure document dated January
2, 2009, relating to the private offering of the Company’s Common
Stock.
2. Registration.
(a) Required Registration. Subject
to exceptions and limitations described herein, the Company shall within 90 days
of the closing of the offering under the Term Sheet cause a Registration
Statement to be filed with the Commission on Form S-3, if available, or, if Form
S-3 is not available for the registration of the Registrable Securities, on such
form as may be prescribed by the Commission, providing for the resale of the
Registrable Securities. Such Registration Statement shall contain all
appropriate undertakings necessary to comply with Rule 415 under the Securities
Act pertaining to “shelf registration” or delayed offerings of
securities. The Company shall use its best reasonable efforts to
cause the Commission to declare such Registration Statement effective and to
maintain the effectiveness of such Registration Statement pursuant to Section 4
below.
(b) Liquidated
Damages.
(i) If
the Registration Statement is not filed with the Commission within 90 days of
the closing of the offering under the Term Sheet, then the Company shall, as
additional consideration and not as a penalty, deliver to the Investor on such
90th
day, and every 30 days thereafter until it is filed, an amount of cash equal to
0.5% of the purchase price of the Common Stock purchased by such
investor.
(ii) If
the Registration Statement has not been declared effective by the Commission
within 120 days of the closing of the offering under the Term Sheet (or 150 days
if the Commission’s Staff reviews the Registration Statement), then the Company
shall, as additional consideration, deliver to the Investor on such 120th or
150th day, as
applicable, and on each successive 30th day
thereafter under which the Registration Statement has not been declared
effective, an amount of cash equal to 0.5% of the purchase price of the Units
purchased by the Investor.
3. Obligations
of the Company. If and whenever the Company is required by the provisions
hereof to effect or cause the registration of any Registrable Securities under
the Securities Act as provided herein, the Company shall:
(a) use its
best efforts to prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities and use its
best reasonable efforts to cause such Registration Statement to
become and remain effective;
(b) use its
best efforts to prepare and file with the Commission such amendments to such
Registration Statement (including post-effective amendments) and supplements to
the prospectus included therein as may be necessary to keep such Registration
Statement effective, subject to the qualifications in Section 4(a), and to
comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the Investor set forth in such Registration
Statement;
(c) furnish
to the Investor such number of copies of such Registration Statement and of each
such amendment and supplement thereto (in each case including all exhibits),
such number of copies of the prospectus included in such registration statement
(including each preliminary prospectus), in conformity with the requirements of
the Securities Act, and such other documents, as the Investor may reasonably
request, in order to facilitate the public sale or other disposition of the
Registrable Securities owned by the Investor;
(d) use its
best efforts to register and/or qualify the securities covered by the
Registration Statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Investors participating in
the Registration and as may be reasonably appropriate for the distribution of
such Registrable Securities, provided, however, that
notwithstanding anything in this Agreement to the contrary, in the event any
jurisdiction in which the securities shall be qualified imposes a non-waivable
requirement that expenses incurred in connection with the qualification of the
Registrable Securities be borne by selling shareholders, the Investors shall pay
their pro rata share of such expenses;
(e) notify
the Investor at any time when a prospectus relating to his or its Registrable
Securities is required to be delivered under the Securities Act, of the
Company’s becoming aware that the prospectus included in the related
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly prepare and furnish to the Investor a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(f) otherwise
use its best efforts to comply with all applicable rules and regulations of the
Commission;
(g) cause all
such Registrable Securities on such Registration Statement to be listed on each
securities exchange or automated quotation service (including the National
Market of The Nasdaq Stock Market) on which similar securities issued by the
Company are then listed; and
(h) notify
the Investor of any stop order threatened or issued by the Commission and take
all actions reasonably necessary to prevent the entry of such stop order or to
remove it if entered.
4. Other
Procedures.
(a)
Subject to the Company’s general obligation to use its best efforts under
Section 3, the Company shall be required to maintain the effectiveness of a
Registration Statement (under Form S-3) until the earlier of (i) the date of
settlement of sale of all Registrable Securities or (ii) 24 months from the
effective date of the Registration Statement.
(b) In
consideration of the Company’s obligations under this Agreement, the Investor
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 3(e) herein, the Investor shall forthwith
discontinue his sale of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until the Investor’s receipt of
the copies of the supplemented or amended prospectus contemplated by said
Section 3(e) and,
if so directed by the Company, shall deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies, then in the Investor’s
possession of the prospectus covering such Registrable Securities current at the
time of receipt of such notice.
(c)
The Company’s obligation to file any Registration Statement or amendment
including a post-effective amendment, shall be subject to each Investor, as
applicable, furnishing to the Company in writing upon the Company’s reasonable
request such information and documents regarding such Investor and the
distribution of such Investor’s Registrable Securities as may reasonably be
required to be disclosed in the Registration Statement in question by the rules
and regulations under the Securities Act or under any other applicable
securities or blue sky laws of the jurisdiction referred to in Section 3(d)
herein. The Company’s obligations are also subject to each Investor
promptly executing any representation letter concerning compliance with
Regulation M under the Exchange Act (or any successor rule or
regulation).
(d) If
any such registration or comparable statement refers to the Investor by name or
otherwise as a stockholder of the Company, but such reference to the Investor by
name or otherwise is not required by the Securities Act or the rules thereunder,
then each Investor shall have the right to require the deletion of the reference
to the Investor, as may be applicable.
(e) In
connection with the sale of Registrable Securities, the Investor shall deliver
to each purchaser a copy of the necessary prospectus and, if applicable,
prospectus supplement, within the time required by Section 5(b) of the
Securities Act.
5. Registration
Expenses. In connection
with any registration of Registrable Securities pursuant to Section 2(a), the
Company shall, whether or not any such registration shall become effective, from
time to time, pay all expenses (other than Selling Expenses) incident to its
performance of or compliance, including, without limitation, all registration,
and filing fees, fees and expenses of compliance with securities or blue sky
laws, word processing, printing and copying expenses, messenger and delivery
expenses, fees and disbursements of counsel for the Company and all independent
public accountants and other Persons retained by the Company.
6. Indemnification.
(a) In
the event of any registration of any shares of Common Stock under the Securities
Act pursuant to this Agreement, the Company shall indemnify and hold harmless
each Investor, from and against any losses, claims, damages or liabilities,
joint or several, to which each Investor may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon the Company’s
negligence, fraud, willful misconduct, breach of the terms of this Agreement or
an untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement under which such Registrable Securities
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or any
document incident to registration or qualification of any Registrable
Securities pursuant to Section 3(d) herein, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or,
with respect to any prospectus, necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or any
violation by the Company of the Securities Act, the Exchange Act, or state
securities or blue sky laws applicable to the Company and relating to action or
inaction required of the Company in connection with such registration or
qualification under the Securities Act or such state securities or blue sky
laws. If the Company fails to defend the Investor as required by
Section 6(c) herein, it shall reimburse (after receipt of appropriate
documentation) each Investor for any legal or any other out-of-pocket expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon the Investor’s
negligence, fraud, willful misconduct, breach of the terms of this Agreement or
an untrue statement or alleged untrue statement or omission or alleged omission
made in said Registration Statement, said preliminary prospectus, said
prospectus, or said amendment or supplement or any document incident to
registration or qualification of any Registrable Securities pursuant
to Section 3(d) hereof in reliance upon and in conformity with written
information furnished to the Company by such Investor specifically for use in
the preparation thereof or information omitted to be furnished by such
Investor.
(b) In
the event of any registration of any Registrable Securities under the Securities
Act pursuant to this Agreement, each Investor shall indemnify and hold harmless
(in the same manner and to the same extent as set forth in Section 6(a)) the
Company, each director of the Company, each officer of the Company who signs
such Registration Statement, the Company’s attorneys and auditors and any Person
who controls the Company within the meaning of the Securities Act, with respect
to any untrue statement or omission from such Registration Statement, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, if such untrue statement or omission was made in reliance
upon and in conformity with written information furnished to the
Company by such Investor specifically for use in the preparation of
such Registration Statement, preliminary prospectus, final prospectus or
amendment or supplement or from any other act or failure to act of the
Investor.
(c) Promptly
after receipt by an indemnified party of notice of the commencement of any
action involving a claim referred to in Section 6(a) or (b), such indemnified
party shall, if a claim in respect thereof is made against an indemnifying
party, give written notice to the Indemnifying Party of the commencement of such
action. The indemnifying party shall be relieved of its obligations
under this Section 6(c) to the extent that the indemnified party delays in
giving notice and the indemnifying party is damaged or prejudiced by the
delay. In case any such action is brought against an indemnified
party, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so as to assume the defense thereof, the
indemnifying party shall be responsible for any legal or other expenses
subsequently incurred by the indemnifying party in connection with the defense
thereof, provided,
however, that, if counsel for an indemnified party shall have reasonably
concluded that there is an actual or potential conflict of interest between the
indemnified and the indemnifying party the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
and such indemnifying party shall reimburse such indemnified party and any
Person controlling such indemnified party for the fees and expenses of counsel
retained by the indemnified party which are reasonably related to the matters
covered by the indemnity agreement provided in this Section 6; provided, however,
that in no event shall any indemnification by an Investor under this Section 6
exceed the net proceeds from the sale of Registered Securities
received by the Investor. No indemnified party shall make any
settlement of any claims indemnified against hereunder without the written
consent of the indemnifying party, which consent shall not be unreasonably
withheld. In the event that any indemnifying party enters into any
settlement without the written consent of the indemnified party the indemnifying
party shall not, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff of a release of such indemnified party from all liability
in respect to such claim or litigation.
(d) In
order to provide for just and equitable contribution to joint liability under
the Securities Act in any case in which (i) any indemnified party makes a claim
for indemnification pursuant to this Section 6, but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding the
fact that this Section 6 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required in circumstances for which
indemnification is provided under this Section 6; then, in each such case, the
Company and such Investor shall contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject as is appropriate to reflect
the relative fault of the Company and such Investor in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, it being understood that the parties acknowledge that the
overriding equitable consideration to be given effect in connection with this
provision is the ability of one party or the other to correct the statement or
omission (or avoid the conduct or take an act) which resulted in such losses,
claims, damages or liabilities, and that it would not be just and equitable if
contribution pursuant hereto were to be determined by pro-rata allocation or by
any other method of allocation which does not take into consideration the
foregoing equitable considerations. Notwithstanding the foregoing,
(i) no such Investor shall be required to contribute any amount in excess of the
net proceeds to him of all Registrable Securities sold by him pursuant to such
Registration Statement, and (ii) no Person who is guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the Securities Act
shall be entitled to contribution from any Person who is not guilty of such
fraudulent misrepresentation.
(e) Notwithstanding
any of the foregoing, if, in connection with an underwritten public offering of
the Registrable Securities, the Company, any of the Investor and the
underwriters enter into an underwriting agreement relating to such offering
which contains provisions covering indemnification among the parties, then the
indemnification provision of this Section 6 shall be deemed inoperative for
purposes of such offering.
7. Rule
144. The Company
covenants that it will file the reports required to be filed under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, in the event that the Company is not required to file
such reports, it will make publicly available information as set forth in Rule
144(c)(2) promulgated under the Securities Act), and it will take such further
action as the Investor may reasonably request, or to the extent required from
time to time to enable the Investor to sell their Registrable Securities without
registration under the Securities Act within the limitation of the exemption
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the Commission (collectively, “Rule 144”). Upon request of any
Investor, the Company will deliver to the Investor a written statement as to
whether it has complied with such requirements.
8. Severability. In
the event any parts of this Agreement are found to be void, the remaining
provisions of this Agreement shall nevertheless be binding with the same effect
as though the void parts were deleted.
9. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument. The execution of this Agreement may be by actual or
facsimile signature.
10. Benefit. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their legal representatives, successors and assigns.
11. Notices
and Addresses. All notices, requests, demands, claims and
other communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage pre-paid), guaranteed
overnight delivery, or facsimile transmission if such transmission is confirmed
by delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery, to the following addresses and telecopy numbers
(or to such other addresses or telecopy numbers which such party to this
Agreement shall designate in writing to the other party to this
Agreement):
To the
Company: Pacific
Continental Corporation
000 Xxxx
0xx
Xxxxxx
Xxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention: Xxx X. Xxxxx
Chief Executive Officer
|
With
a Copy to:
|
Xxxxxx
& Xxxx PC
|
Pier 70, 0000 Xxxxxxx Xxx, Xxxxx
000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Kumi X.
Xxxxxxx
To the
Investor: At
the address indicated on the signature page hereof
And to: Xxxxxxxxxx
Securities, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx
000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: J. Xxxxxx
Xxxxx
or to
such other address as any of them, by notice to the other may designate from
time to time. The transmission confirmation receipt from the sender’s
facsimile machine shall be evidence of successful facsimile
delivery.
12. Attorneys
Fees. In the event that there is any controversy arising out
of or relating to this Agreement, or to the interpretation, enforcement or
breach thereof, and any action or proceeding relating to this Agreement is
filed, the prevailing party shall be entitled to an award by the court of
reasonable attorneys’ fees, costs and expenses.
13. Oral
Evidence. This Agreement and the Purchase Agreement constitute
the entire Agreement between the parties and supersedes all prior oral and
written agreements between the parties hereto with respect to the subject matter
of such Agreements. Neither this Agreement nor any provision hereof
may be changed, waived, discharged or terminated except by the mutual written
agreement of the parties hereto. In the event of an ambiguity or
inconsistency between this Agreement and the Purchase Agreement, this Agreement
shall govern and supercede.
14. Additional
Documents. The parties hereto shall execute such additional
instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.
15. Governing
Law. This Agreement and any dispute, disagreement, or issue of
construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided herein or performance shall be
governed or interpreted according to the internal laws of the State of Oregon
without regard to choice of law considerations.
16. Section
or Paragraph Headings. Section headings herein have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part any of the
terms or provisions of this Agreement.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed personally or by a duly authorized representative thereof as of the day
and year first above written.
m40032-1136748_5.doc
THE
COMPANY:
PACIFIC
CONTINENTAL CORPORATION
By: /s/Xxxxx Xxxxx
Xxxxx Xxxxx
President/Chief
Operating Officer
m40032-1136748_5.doc
INVESTOR:
|
For
purchases made by an Individual
|
For
purchases made by an Entity
|
|
Name
of Individual Purchaser over the age of 21 (Print)
|
Name
of Partnership, Company, Trust or Qualified Plan
|
|
By:
|
|
|
(Signature)
|
(Signature)
|
|
Residence
Street Address
|
Print
Name
|
|
City State Zip
Code
|
Title
|
|
Mailing
Address
|
Telephone
No.
|
|
Facsimile
No.
|
|
|
City State Zip
Code
|
Tax
Identification Number
|
|
Telephone
No.
|
Street
Address of Company/Partnership
|
|
Facsimile
No.
|
|
|
City State Zip
Code
|
m40032-1136748_5.doc
