exhibit10_2.htm - Generated by SEC Publisher for SEC Filing
REGISTRATION RIGHTS AGREEMENT
dated as of September 7,
2011
by and between
GREEN BANKSHARES, INC.
and
NORTH AMERICAN
FINANCIAL HOLDINGS, INC.
Table of Contents
| 1. |
Certain Definitions |
1 |
| 2. |
Shelf Registration Statements |
3 |
| 3. |
Additional Demand Registrations |
4 |
| 4. |
Piggyback Registrations |
5 |
| 5. |
Other Registrations |
6 |
| 6. |
Selection of Underwriters |
7 |
| 7. |
Holdback Agreements |
7 |
| 8. |
Procedures |
7 |
| 9. |
Registration Expenses |
11 |
| 10. |
Indemnification |
12 |
| 11. |
Rule 144 |
13 |
| 12. |
Transfer of Registration Rights |
13 |
| 13. |
Conversion or Exchange of Other Securities |
14 |
| 14. |
Miscellaneous |
14 |
REGISTRATION RIGHTS AGREEMENT,
dated as of September 7, 2011, by and between Green Bankshares, Inc., a corporation organized under the
laws of the State of Tennessee (the “Company”), and North
American Financial Holdings, Inc., a Delaware corporation (“Purchaser”).
In consideration of the mutual
covenants and agreements herein contained and other good and valid
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties to this Agreement hereby agree as follows:
1. Certain Definitions.
In addition to the terms defined
elsewhere in this Agreement, the following terms shall have the following
meanings:
“Affiliate” of any Person
means any other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such Person. The term “control” (including the terms “controlling,” “controlled
by” and “under common control with”) as used with respect to any Person means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
“Agreement” means this
Registration Rights Agreement, including all amendments, modifications and
supplements and any exhibits or schedules to any of the foregoing, and shall
refer to this Registration Rights Agreement as the same may be in effect at the
time such reference becomes operative.
“Blackout Period” has the
meaning set forth in Section 8(e) hereof.
“Business Day” means any
day, except a Saturday, Sunday or legal holiday on which banking institutions
in the State of New York or State of Tennessee are authorized or obligated by
law or executive order to close.
“Closing Date” has the
meaning set forth in the Investment Agreement.
“Common Stock” means
common stock, $0.01 par value, of the Company.
“Company” has the meaning
set forth in the introductory paragraph and includes any other person referred
to in the second sentence of Section 14(c) hereof.
“Delay Period” has the
meaning set forth in Section 3(d) hereof.
“Demand Registration” has
the meaning set forth in Section 3(a) hereof.
“Demand Registration Statement”
has the meaning set forth in Section 3(a) hereof.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“FINRA” means the
Financial Industry Regulatory Authority, Inc.
“Full
Cooperation” means, in connection with any underwritten offering, where, in
addition to the cooperation otherwise required by this Agreement, (a) members
of senior management of the Company (including the chief executive officer and
chief financial officer) fully cooperate with the underwriter(s) in connection
therewith and, at the recommendation or request of the underwriters, make
themselves available to participate in “road-show” and other customary
marketing activities in such locations (domestic and foreign) as recommended by
the underwriter(s) (including one-on-one meetings with prospective purchasers
of the Registrable Common Stock) and (b) the Company prepares preliminary and
final prospectuses (preliminary and final prospectus supplements in the case of
an offering pursuant to the Shelf Registration Statement) for use in connection
therewith containing such additional information as reasonably requested by the
underwriter(s) (in addition to the minimum amount of information required by
law, rule or regulation).
“Fully Marketed Underwritten
Offering” means an underwritten offering in which there is Full
Cooperation.
“Governmental Entity” means any national, federal,
state, municipal, local, territorial, foreign or other government or any
department, commission, board, bureau, agency, regulatory authority or
instrumentality thereof, or any court, judicial, administrative or arbitral
body or public or private tribunal.
“Investment Agreement”
means the Investment Agreement, dated as of May 5, 2011, by and among the
Company, GreenBank, a Tennessee state-chartered banking corporation and a
banking subsidiary of the Company, and
Purchaser. All capitalized terms used herein but not otherwise defined
shall have those meanings set forth in the Investment Agreement.
“NASDAQ” means The NASDAQ
Stock Market LLC.
“Person” means any
individual, sole proprietorship, partnership, limited liability company, joint
venture, trust, unincorporated organization, association, corporation, institution,
public benefit corporation, Governmental Entity or any other entity.
“Piggyback Registration”
has the meaning set forth in Section 4(a) hereof.
“Piggyback Registration Statement” has the meaning
set forth in Section 4(a) hereof.
“Prospectus” means the
prospectus or prospectuses forming a part of, or deemed to form a part of, or
included in, or deemed included in, any Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Common Stock covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated
by reference in such prospectus or prospectuses.
“Registrable Common Stock”
means (i) any shares of Common Stock issued as Stock Consideration, (ii) any
other security into or for which the Common Stock referred to in clause (i) has
been converted, substituted or exchanged, and any security issued or issuable
with respect thereto upon any stock dividend or stock split or in connection
with a combination of shares, reclassification, recapitalization, merger,
consolidation or other reorganization or otherwise.
“Registration
Expenses” has the meaning set forth in Section 9(a) hereof.
“Registration Statement”
means any registration statement of the Company that covers any of the Registrable
Common Stock pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement,
including post-effective amendments, all exhibits and all materials incorporated
by reference in such Registration Statement.
“Rule 144” means Rule 144 promulgated
by the SEC pursuant to the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such rule.
“Rule 415” means Rule 415 promulgated by the SEC
pursuant to the Securities Act, as such rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC as a replacement
thereto having substantially the same effect as such rule.
“SEC” means the Securities
and Exchange Commission.
“Securities Act” means the
Securities Act of 1933, as amended.
“Shelf Registration Statement”
has the meaning set forth in Section 2(a) hereof.
“Stock Consideration”
means the shares of Common Stock issued to Purchaser pursuant to the Investment
Agreement.
“Purchaser” has the
meaning set forth in the introductory paragraph.
“Suspension Notice” has
the meaning set forth in Section 8(e) hereof.
“underwritten registration or
underwritten offering” means an offering in which securities of the Company
are sold to one or more underwriters (as defined in Section 2(a)(11) of the
Securities Act) for resale to the public.
2. Shelf Registration
Statements.
(a) Right to Request
Registration. At the request of Purchaser, the Company shall use its
reasonable best efforts to promptly file a registration statement on Form S‑3
or such other form under the Securities Act then available to the Company
providing for the resale pursuant to Rule 415 from time to time by
Purchaser of such number of shares of Registrable Common Stock requested by Purchaser
to be registered thereby (including the Prospectus,
amendments and supplements to the shelf registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such shelf registration statement, the “Shelf Registration
Statement”). The Company shall use its reasonable best efforts to cause
the Shelf Registration Statement to be declared effective by the SEC as
promptly as practicable following such filing. The Company shall maintain the
effectiveness of the Shelf Registration Statement for a period of at least
eighteen (18) months in the aggregate plus the duration of any Blackout Period. The plan of distribution contained in the Shelf
Registration Statement (or related Prospectus supplement) shall be determined
by Purchaser in consultation with the Company.
(b) Number of Fully
Marketed Underwritten Offerings. Purchaser shall be entitled to request an
aggregate of four (4) Fully Marketed Underwritten Offerings pursuant to the
Shelf Registration Statement; provided, however, that Purchaser
shall be entitled to request no more than two (2) underwritten offerings
pursuant to the Shelf Registration Statement in any twelve (12)-month period
that require involvement by management of the Company in “road-show” or similar
marketing activities. If Purchaser requests a Fully Marketed Underwritten
Offering, the Company shall cause there to occur Full Cooperation in connection therewith. An underwritten offering
shall not count as one of the permitted Fully Marketed Underwritten Offerings
if there is not Full Cooperation in connection therewith or Purchaser is not
able to sell at least 50% of the Registrable Common Stock desired to be sold in
such Fully Marketed Underwritten Offering. Except as provided in this Section
2(b), there shall be no limitation on the number of takedowns off the Shelf
Registration Statement.
3. Additional Demand
Registrations.
(a) Right to Request
Registration. Any time after the date hereof, Purchaser may request
registration for resale under the Securities Act of all or part of the Registrable
Common Stock pursuant to a Registration Statement separate from the Shelf
Registration Statement (a “Demand Registration”). As promptly as
practicable after such request, but in any event within twenty (20) days of
such request by Purchaser, the Company shall file a registration statement registering
for resale such number of shares of Registrable Common Stock held by Purchaser
as requested to be so registered (including the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such registration statement, a “Demand Registration Statement”).
In connection with each such Demand Registration, the Company shall cause there
to occur Full Cooperation.
(b) Number of Demand
Registrations. Purchaser will be entitled to request four (4) Demand
Registrations pursuant to Section 3(a) minus the number of Fully Marketed
Underwritten Offerings completed off of the Shelf Registration Statement. A
registration shall not count as one of the permitted Demand Registrations
pursuant to Section 3(a) (i) until the related Demand Registration Statement
has become effective, (ii) if Purchaser is not able to register and sell at
least 50% of the Registrable Common Stock requested to be included in such
registration, or (iii) if there was not Full Cooperation in connection
therewith. For avoidance of doubt, the aggregate number of Demand
Registrations and Fully Marketed Underwritten Offerings completed off of the
Shelf Registration Statement shall not exceed four (4).
(c) Priority on Demand
Registrations. If a Demand Registration pursuant to this Section 3 involves
an underwritten offering and the managing underwriter shall advise the Company
that in its opinion the number of securities requested to be included in such
registration exceeds the number of securities that can be sold in such offering
without having an adverse effect on such offering, including the price at which
such securities can be sold, then the Company shall include in such registration
the maximum number of shares that such underwriter advises can be so sold
without having such effect, allocated (i) first, to Registrable Common Stock
requested by Purchaser to be included in such
registration and (ii) second, among all shares of Common Stock requested to be
included in such registration by any other Persons (including securities to be
sold for the account of the Company) allocated among such Persons in such manner
as they may agree.
(d) Restrictions on
Demand Registrations. The Company may postpone the filing or the
effectiveness of a Demand Registration Statement if, based on the good faith
judgment of the Company’s Board of Directors, such postponement is necessary in
order to avoid premature disclosure of a matter the Board of Directors has
determined would not be in the best interest of the Company to be disclosed at
such time; provided, however, that Purchaser requesting such
Demand Registration Statement shall be entitled, at any time after receiving
notice of such postponement and before such Demand Registration Statement
becomes effective, to withdraw such request and, if such request is withdrawn,
such Demand Registration shall not count as one of the permitted Demand Registrations.
The Company shall provide written notice to Purchaser of (x) any postponement
of the filing or effectiveness of a Demand Registration Statement pursuant to
this Section 3(d), (y) the Company’s decision to file or seek effectiveness of
such Demand Registration Statement following such postponement and (z) the
effectiveness of such Demand Registration Statement. The Company may defer the
filing or effectiveness of a particular Demand Registration Statement pursuant
to this Section 3(d) only once during any twelve (12)-month period.
Notwithstanding the provisions of this Section 3(d), the Company may not
postpone the filing or effectiveness of a Demand Registration Statement past
the date that is the earliest of (a) the date upon which any disclosure of a
matter the Board of Directors has determined would not be in the best interest
of the Company to be disclosed is disclosed to the public or ceases to be
material, (b) forty-five (45) days after the date upon which the Board of
Directors has determined such matter should not be disclosed and (c) such date
that, if such postponement continued, would result in there being more than
ninety (90) days in the aggregate in any twelve (12)-month period during which
the filing or effectiveness of one or more Registration Statements has been so
postponed. The period during which filing or effectiveness is so postponed
hereunder is referred to as a “Delay Period.”
(e) Effective Period of
Demand Registrations. After any Demand Registration filed pursuant to this
Agreement has become effective, the Company shall use its reasonable best
efforts to keep such Demand Registration Statement effective for a period of at
least 90 days from the date on which the SEC declares such Demand Registration
Statement effective plus the duration of any Delay Period and any Blackout
Period, or such shorter period that shall terminate when all of the Registrable
Common Stock covered by such Demand Registration Statement has been sold
pursuant to such Demand Registration Statement in accordance with the plan of
distribution set forth therein.
4. Piggyback
Registrations.
(a) Right to Piggyback.
Whenever the Company proposes to publicly sell or register for sale any of its
common equity securities pursuant to a registration statement (a “Piggyback
Registration Statement”) under the Securities Act (other than a
registration statement on Form S-8 or on Form S-4 or any similar successor
forms thereto), whether for its own account or for the account of one or more
securityholders of the Company (a “Piggyback Registration”), the Company
shall give prompt written notice to Purchaser of its intention to effect such
sale or registration and, subject to Sections 4(b)
and 4(c), shall include in such transaction all Registrable Common Stock
with respect to which the Company has received a written request from Purchaser
for inclusion therein within fifteen (15) days after the receipt of the
Company’s notice. The Company may postpone or withdraw the filing or the effectiveness
of a Piggyback Registration at any time in its sole discretion, without
prejudice to Purchaser’s right to immediately request a Demand Registration or
Shelf Registration Statement hereunder. A Piggyback Registration shall not be
considered a Demand Registration for purposes of Section 3 of this Agreement or
a Shelf Registration Statement for purposes of Section 2 of this Agreement.
(b) Priority on Primary
Registrations. If a Piggyback Registration is initiated as an underwritten
primary registration on behalf of the Company where the primary use of proceeds
does not include the repurchase, redemption, subscription or retirement of
capital stock of the Company (a “Stock Repurchase”), and the managing
underwriter advises the Company in writing that in its opinion the number of
securities requested to be included in such registration exceeds the number of
securities that can be sold in such offering without having an adverse effect
on such offering, including the price at which such securities can be sold,
then the Company shall include in such registration the maximum number of
shares that such underwriter advises can be so sold without having such effect,
allocated (i) first, to the securities the Company proposes to sell, (ii)
second, to the Registrable Common Stock requested to be included therein by Purchaser,
and (iii) third, among other securities requested to be included in such
registration by other security holders of the Company on such basis as such
holders may agree among themselves and the Company.
(c) Priority on Secondary
Registrations. If a Piggyback Registration is initiated as an underwritten
registration on behalf of a holder of the Company’s securities other than
Registrable Common Stock or on behalf of the Company where the use of proceeds
includes a Stock Repurchase, and the managing underwriter advises the Company
in writing that in its opinion the number of securities requested to be
included in such registration exceeds the number that can be sold in such
offering without having an adverse effect on such offering, including the price
at which such securities can be sold, then the Company shall include in such
registration the maximum number of shares that such underwriter advises can be
so sold without having such effect, allocated (i) first, to the securities
requested to be included therein by the holder(s) requesting such registration
and the Registrable Common Stock requested to be included in such registration,
pro rata among the holders of such securities on the basis of the number of
shares requested to be registered by such holders and (ii) second, to other
securities (including Registrable Common Stock) requested to be included in
such registration by other security holders, the Company and Purchaser, pro
rata among such holder(s), the Company and Purchaser on the basis of the number
of shares requested to be registered by them.
5. Other
Registrations.
The Company shall not grant to any Person the right, other
than as set forth herein, to request the Company to register any securities of
the Company except such rights as are not more favorable than or not
inconsistent with the rights granted to Purchaser and that do not adversely
affect the priorities set forth herein of Purchaser.
6. Selection of
Underwriters.
If any of the Registrable Common Stock covered by a Demand
Registration Statement or a Shelf Registration Statement is to be sold in an
underwritten offering, Purchaser shall have the right to select the managing
underwriter(s) to administer the offering subject to the prior approval of the
Company, which approval shall not be unreasonably withheld.
7. Holdback Agreements.
The Company agrees not to, and shall exercise its
reasonable best efforts to obtain agreements (in the underwriters’ customary
form) from its directors, executive officers and beneficial owners of 5% or
more of the Company’s outstanding voting stock not to, directly or indirectly
offer, sell, pledge, contract to sell, (including any short sale), grant any
option to purchase or otherwise dispose of any equity securities of the Company
or enter into any hedging transaction relating to any equity securities of the
Company during the ninety (90) days beginning on the effective date of any
underwritten Demand Registration Statement or any underwritten Piggyback
Registration Statement or the pricing date of any underwritten offering
pursuant to any Registration Statement (except as part of such underwritten
offering or pursuant to registrations on Form S-8 or S-4 or any successor forms
thereto) unless the underwriter managing the offering otherwise agrees to a
shorter period.
8. Procedures.
(a) In connection with the
registration and sale of Registrable Common Stock pursuant to this Agreement,
the Company shall use its reasonable best efforts to effect the registration
and the sale of such Registrable Common Stock in accordance with Purchaser’s
intended methods of disposition thereof, and pursuant thereto the Company shall
as expeditiously as reasonably practicable:
(i) prepare and file with
the SEC a Registration Statement with respect to such Registrable Common Stock
and use its reasonable best efforts to cause such Registration Statement to
become effective as soon as practicable thereafter; and before filing a
Registration Statement or Prospectus or any amendments or supplements thereto
(including any prospectus supplement for a shelf takedown), furnish to
Purchaser and the underwriter or underwriters, if any, copies of all such
documents proposed to be filed, including documents incorporated by reference
in the Prospectus and, if requested by Purchaser, the exhibits incorporated by
reference, and Purchaser (and the underwriter(s), if any) shall have the
opportunity to review and comment thereon, and the Company will make such
changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s),
if any) prior to filing any Registration Statement or amendment thereto or any
Prospectus or any supplement thereto;
(ii) prepare
and file with the SEC such amendments and supplements to such Registration
Statement and the Prospectus used in connection therewith as may be necessary
to keep such Registration Statement effective for a period of not less than 90
days, in the case of a Demand Registration Statement or an aggregate of
eighteen (18) months, in the case of a Shelf Registration Statement (plus, in
each case, the duration of any Delay Period and any Blackout Period), or such
shorter period as is necessary to complete the distribution of the securities
covered by such Registration Statement and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement during such period in accordance with the intended
methods of disposition by Purchaser thereof set forth in such Registration
Statement and, in the case of the Shelf Registration Statement, prepare such
prospectus supplements containing such disclosures as may be reasonably
requested by Purchaser or any underwriter(s) in connection with each shelf
takedown;
(iii) furnish to Purchaser
such number of copies of such Registration Statement, each amendment and
supplement thereto, each Prospectus (including each preliminary Prospectus and
Prospectus supplement) and such other documents as Purchaser and any
underwriter(s) may reasonably request in order to facilitate the disposition of
the Registrable Common Stock, provided, however, that the Company
shall have no such obligation to furnish copies of a final prospectus if the
conditions of Rule 172(c) under the Securities Act are satisfied by the Company;
(iv) use its reasonable best
efforts to register or qualify such Registrable Common Stock under such other
securities or blue sky laws of such jurisdictions (domestic or foreign) as
Purchaser and any underwriter(s) reasonably requests and do any and all other
acts and things that may be reasonably necessary or advisable to enable
Purchaser and any underwriter(s) to consummate the disposition in such
jurisdictions of the Registrable Common Stock (provided, that the Company will
not be required to (1) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this subparagraph
(iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to
general service of process in any such jurisdiction);
(v) notify Purchaser and any
underwriter(s), at any time when a Prospectus relating thereto is required to
be delivered under the Securities Act, of the occurrence of any event as a
result of which any Prospectus contains an untrue statement of a material fact
or omits any material fact necessary to make the statements therein not
misleading, and, at the request of Purchaser or any underwriter(s), the Company
shall prepare a supplement or amendment to such Prospectus so that, as
thereafter supplemented and/or amended, such Prospectus shall not contain an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading;
(vi) in the case of an
underwritten offering, (i) enter into such customary agreements (including
underwriting agreements in customary form), (ii) take all such other actions as
Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such
Registrable Common Stock (including, without limitation, causing senior
management and other Company personnel to cooperate with Purchaser and the underwriter(s)
in connection with performing due diligence) and (iii) cause its counsel to issue
opinions of counsel in form, substance and scope as are customary in primary
underwritten offerings, addressed and delivered to the underwriter(s) and
Purchaser;
(vii) in connection with
each Demand Registration pursuant to Section 3 and each Fully Marketed
Underwritten Offering requested by Purchaser under Section 2, cause there to
occur Full Cooperation and, in all other cases, cause members of senior
management of the Company to be available to participate in, and to cooperate
with the underwriter(s) in connection with customary marketing activities
(including select conference calls and one-on-one meetings with prospective
purchasers);
(viii) make available for
inspection by Purchaser, any underwriter participating in any disposition
pursuant to a Registration Statement, and any attorney, accountant or other
agent retained by Purchaser or underwriter, all pertinent financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company’s officers, directors, employees and independent accountants to
supply all information reasonably requested by Purchaser, any underwriter, any
attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best
efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or
any exchange on which securities of the same class issued by the Company are
then listed or, if no such similar securities are then listed, on a national
securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent
and registrar for all such Registrable Common Stock not later than the
effective date of such Registration Statement;
(xi) if requested, cause to
be delivered, immediately prior to the pricing of any underwritten offering,
immediately prior to effectiveness of each Registration Statement (and, in the
case of an underwritten offering, at the time of closing of the sale of
Registrable Common Stock pursuant thereto), letters from the Company’s
independent registered public accountants addressed to Purchaser and each
underwriter, if any, stating that such accountants are independent public
accountants within the meaning of the Securities Act and the applicable rules
and regulations adopted by the SEC thereunder, and otherwise in customary form
and covering such financial and accounting matters as are customarily covered
by letters of the independent registered public accountants delivered in
connection with primary underwritten public offerings;
(xii) make generally
available to Purchaser and its Affiliates a consolidated earnings statement
(which need not be audited) for the 12 months beginning after the effective
date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall
satisfy the requirements of an earning statement under Section 11(a) of the Securities
Act; and
(xiii) promptly notify
Purchaser and the underwriter or underwriters, if any:
(1) when the Registration
Statement, any pre-effective amendment, the Prospectus or any Prospectus
supplement or post-effective amendment to the Registration Statement has been
filed and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective;
(2) of any written request
by the SEC for amendments or supplements to the Registration Statement or any
Prospectus or of any inquiry by the SEC relating to the Registration Statement
or the Company’s status as a well-known seasoned issuer;
(3) of the notification to
the Company by the SEC of its initiation of any proceeding with respect to the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement; and
(4) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any Registrable Common Stock for sale under the applicable securities or
blue sky laws of any jurisdiction.
(b) The Company represents
and warrants that no Registration Statement (including any amendments or
supplements thereto and Prospectuses contained therein) shall contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein, or necessary to make the statements therein not
misleading (except that the Company makes no representation or warranty with
respect to information relating to Purchaser furnished to the Company by or on
behalf of Purchaser specifically for use therein).
(c) The Company shall make
available to Purchaser (i) promptly after the same is prepared and publicly
distributed, filed with the SEC, or received by the Company, one copy of each
Registration Statement and any amendment thereto, each preliminary Prospectus
and Prospectus and each amendment or supplement thereto, each letter written by
or on behalf of the Company to the SEC or the staff of the SEC (or other governmental
agency or self-regulatory body or other body having jurisdiction, including any
domestic or foreign securities exchange), and each item of correspondence from
the SEC or the staff of the SEC (or other governmental agency or
self-regulatory body or other body having jurisdiction, including any domestic
or foreign securities exchange), in each case relating to such Registration
Statement or to any of the documents incorporated by reference therein, and
(ii) such number of copies of each Prospectus, including a preliminary
Prospectus, and all amendments and supplements thereto and such other documents
as Purchaser or any underwriter may reasonably request in order to facilitate
the disposition of the Registrable Common Stock. The Company will promptly
notify Purchaser of the effectiveness of each Registration Statement or any
post-effective amendment or the filing of any supplement or amendment to such
Shelf Registration Statement or of any Prospectus supplement. The Company will
promptly respond to any and all comments received from the SEC,
with a view towards causing each Registration Statement or any amendment
thereto to be declared effective by the SEC as soon as practicable and shall
file an acceleration request, if necessary, as soon as practicable following
the resolution or clearance of all SEC comments or, if applicable, following
notification by the SEC that any such Registration Statement or any amendment
thereto will not be subject to review.
(d) The Company may require
Purchaser to furnish to the Company any other information regarding Purchaser
and the distribution of such securities as the Company reasonably determines,
based on the advice of counsel, is required to be included in any Registration
Statement.
(e) Purchaser agrees that,
upon notice from the Company of the happening of any event as a result of which
the Prospectus included (or deemed included) in such Registration Statement
contains an untrue statement of a material fact or omits any material fact
necessary to make the statements therein not misleading (a “Suspension
Notice”), Purchaser will forthwith discontinue disposition of Registrable
Common Stock pursuant to such Registration Statement for a reasonable length of
time not to exceed 10 days (45 days in the case of an event described in
Section 3(d)) until Purchaser is advised in writing by the Company that the use
of the Prospectus may be resumed and is furnished with a supplemented or
amended Prospectus as contemplated by Section 8(a) hereof; provided, however,
that such postponement of sales of Registrable Common Stock by Purchaser shall
not exceed ninety (90) days in the aggregate in any 12 month period. If the
Company shall give Purchaser any Suspension Notice, the Company shall extend
the period of time during which the Company is required to maintain the
applicable Registration Statements effective pursuant to this Agreement by the
number of days during the period from and including the date of the giving of
such Suspension Notice to and including the date Purchaser either is advised by
the Company that the use of the Prospectus may be resumed or receives the
copies of the supplemented or amended Prospectus contemplated by Section 8(a)
(a “Blackout Period”). In any event, the Company shall not be entitled
to deliver more than a total of three (3) Suspension Notices or notices of any
Delay Period in any twelve (12)-month period.
(f) The Company shall not
permit any officer, director, underwriter, broker or any other person acting on
behalf of the Company to use any free writing prospectus (as defined in Rule
405 under the Securities Act) in connection with any registration statement
covering Registrable Common Stock, without the prior written consent of Purchaser
and any underwriter.
9. Registration Expenses.
(a) All expenses incident to
the Company’s performance of or compliance with this Agreement, including,
without limitation, all registration and filing fees (including SEC
registration fees and FINRA filing fees), fees and expenses of compliance with
securities or blue sky laws, listing application fees, printing expenses,
transfer agent’s and registrar’s fees, cost of distributing Prospectuses in
preliminary and final form as well as any supplements thereto, and fees and
disbursements of counsel for the Company and all accountants and other Persons
retained by the Company (all such expenses being herein called “Registration
Expenses”) (but not including any underwriting discounts or commissions or
transfer taxes, if any, attributable to the sale of Registrable Common Stock),
shall be borne by the Company. In addition, the Company shall pay its internal
expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which they are to be listed.
(b) The Company shall pay, or shall reimburse Purchaser for, the reasonable fees and disbursements of one law firm chosen by Purchaser as its counsel in connection with each Registration Statement and sale of Registrable Common Stock pursuant thereto.
(c) The obligation of the Company to bear the expenses described in Section 9(a) and to pay or reimburse Purchaser for the expenses described in Section 9(b) shall apply irrespective of whether any sales of Registrable Common Stock ultimately take place.
10. Indemnification.
(a) The Company shall indemnify, to the fullest extent permitted by law, Purchaser and its officers, directors, employees and Affiliates and each Person who controls Purchaser (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus, preliminary Prospectus or any “issuer free writing prospectus” (as defined in Securities Act Rule 433) or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or any violation or alleged violation by the Company of the Securities Act, the Exchange Act or applicable “blue sky” laws, except insofar as the same are made in reliance and in conformity with information relating to Purchaser furnished in writing to the Company by Purchaser expressly for use therein. In connection with an underwritten offering, the Company shall indemnify such underwriter(s), their officers, employees and directors and each Person who controls such underwriter(s) (within the meaning of the Securities Act) at least to the same extent as provided above with respect to the indemnification of Purchaser.
(b) In connection with any Registration Statement in which Purchaser is participating, Purchaser shall furnish to the Company in writing such information as the Company reasonably determines, based on the advice of counsel, is required to be included in any such Registration Statement or Prospectus and shall indemnify, to the fullest extent permitted by law, the Company, its officers, employees, directors, Affiliates, and each Person who controls the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that the same are made in reliance and in conformity with information relating to Purchaser furnished in writing to the Company by Purchaser expressly for use therein.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such
indemnifying party
to assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party shall
not be subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably withheld).
An indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim shall not be obligated to pay the fees and expenses of more
than one counsel (in addition to any local counsel) for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party there may be one or more legal or equitable
defenses available to such indemnified party that are in addition to or may conflict
with those available to another indemnified party with respect to such claim.
Failure to give prompt written notice shall not release the indemnifying party
from its obligations hereunder.
(d) The indemnification
provided for under this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party
or any officer, director or controlling Person of such indemnified party and
shall survive the transfer of securities.
(e) If the indemnification
provided for in or pursuant to this Section 10 is due in accordance with
the terms hereof, but is held by a court to be unavailable or unenforceable in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified Person as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the
other in connection with the statements or omissions that result in such
losses, claims, damages, liabilities or expenses as well as any other relevant
equitable considerations. The relative fault of the indemnifying party on the
one hand and of the indemnified party on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party, and by such party’s relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. In no event shall the liability of Purchaser be greater in amount
than the amount of net proceeds received by Purchaser upon such sale.
11. Rule 144.
The Company covenants that it
will file the reports required to be filed by it under the Securities Act and
the Exchange Act and the rules and regulations adopted by the SEC thereunder,
and it will take such further action as Purchaser may reasonably request to make available adequate current
public information with respect to the Company meeting the current public
information requirements of Rule 144(c) under the Securities Act, to the extent
required to enable Purchaser to sell
Registrable Common Stock without registration under the Securities Act within
the limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of Purchaser, the Company will deliver to Purchaser a written statement as to whether it has complied with such
information and requirements.
12. Transfer
of Registration Rights.
(a) Purchaser may transfer
all or any portion of its then-remaining rights under this Agreement to any
transferee who acquires at least ten percent (10%) of the Stock Consideration
(each, a “transferee”). Any transfer of registration rights pursuant to
this Section 12 shall be effective upon receipt by the Company of (x) written
notice from Purchaser stating the name and address of any transferee and
identifying the amount of Registrable Common Stock with respect to which the
rights under this Agreement are being transferred and the nature of the rights
so transferred and (y) a written agreement from the transferee to be bound by
all of the terms of this Agreement. In connection with any such transfer, the
term “Purchaser” as used in this Agreement shall, where appropriate to assign
such rights to such transferee, be deemed to refer to the transferee holder of
such Registrable Common Stock. Purchaser and such transferees may exercise the
registration rights hereunder in such proportion (not to exceed the
then-remaining rights hereunder) as they shall agree among themselves.
(b) After such transfer,
Purchaser shall retain its rights under this Agreement with respect to all
other Registrable Common Stock owned by Purchaser. Upon the request of
Purchaser, the Company shall execute a Registration Rights Agreement with such
transferee or a proposed transferee substantially similar to the applicable sections
of this Agreement.
13. Conversion or Exchange
of Other Securities.
If Purchaser offers Registrable Common Stock by forward
sale, or any options, rights, warrants or other securities issued by it or any
other person that are offered with, convertible into or exercisable or exchangeable
for any Registrable Common Stock, the Registrable Common Stock subject to such
forward sale or underlying such options, rights, warrants or other securities
shall be eligible for registration pursuant to Sections 2, 3 and 4 of this
Agreement.
14. Miscellaneous.
(a) Notices. All
notices, requests, consents and other communications required or permitted
hereunder shall be in writing and shall be hand delivered or mailed postage
prepaid by registered or certified mail or by facsimile transmission (with immediate
telephone confirmation thereafter) and, in the case of Purchaser, shall also be
sent via e-mail,
(i) If to Purchaser to it at:
North American Financial Holdings, Inc.
4725 Piedmont Row Drive
Charlotte, North Carolina 28210
Attn: Christopher G. Marshall
Telephone: 704-554-5901
Fax: 704-964-2442
with a copy to (which copy
alone shall not constitute notice):
Wachtell, Lipton, Rosen
& Katz
51 West 52nd Street
New York, New York 10019
Attn: David E. Shapiro
Telephone: (212) 403-1000
Fax: (212) 403-2000
(ii) If to the
Company:
Green Bankshares, Inc.
100 North Main Street
Greeneville, Tennessee 37743
Attention: Stephen M. Rownd
Telephone: (423) 278-3323
Fax: (866) 550-2336
with a copy (which copy alone shall not constitute
notice):
Bass, Berry & Sims PLC
150 Third Avenue South, Suite 2800
Nashville, TN 37201
Attention: D. Scott Holley
Telephone: (615) 742-7721
Fax: (615) 742-2813
or at
such other address as such party each may specify by written notice to the
others, and each such notice, request, consent and other communication shall
for all purposes of the Agreement be treated as being effective or having been
given when delivered personally, upon one business day after being deposited
with a courier if delivered by courier, upon receipt of facsimile confirmation
if transmitted by facsimile, or, if sent by mail, at the earlier of its receipt
or 72 hours after the same has been deposited in a regularly maintained
receptacle for the deposit of United States mail, addressed and postage prepaid
as aforesaid.
(b) No Waivers. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
(c) Successors and
Assigns. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. If the outstanding Common Stock is converted into or exchanged or
substituted for other securities issued by any other Person, as a condition to
the effectiveness of the merger, consolidation, reclassification, share
exchange or other transaction pursuant to which such conversion, exchange,
substitution or other transaction takes place, such other Person shall
automatically become bound hereby with respect to such
other securities constituting Registrable Common Stock and, if requested by
Purchaser or a permitted transferee, shall further evidence such obligation by
executing and delivering to Purchaser and such transferee a written agreement
to such effect in form and substance satisfactory to Purchaser.
(d) Governing Law.
This Agreement will be governed by and construed in accordance with the laws of
the State of Delaware applicable to contracts made and to be performed entirely
within such State.
(e) Jurisdiction.
The parties hereby irrevocably and unconditionally consent to submit to the
exclusive jurisdiction of the federal courts of the United States of America
located in the State of Delaware, or, if jurisdiction in such federal courts is
not available, the courts of the State of Delaware, for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby, and each party hereby irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any such
court has been brought in an inconvenient forum. Without limiting the foregoing,
each party agrees that service of process on such party as provided in
Section 14(a) shall be deemed effective service of process on such party.
(f) Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts;
Effectiveness. This Agreement may be executed in any number of
counterparts (including by facsimile) and by different parties hereto in separate
counterparts, with the same effect as if all parties had signed the same
document. All such counterparts shall be deemed an original, shall be
construed together and shall constitute one and the same instrument. This
Agreement shall become effective when each party hereto shall have received counterparts
hereof signed by all of the other parties hereto.
(h) Entire Agreement.
This Agreement contains the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes and replaces all other
prior agreements, written or oral, among the parties hereto with respect to the
subject matter hereof.
(i) Captions. The
headings and other captions in this Agreement are for convenience and reference
only and shall not be used in interpreting, construing or enforcing any
provision of this Agreement.
(j) Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
(k) Amendments. The
provisions of this Agreement, including the provisions of this sentence, may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, without the written
consent of the Company and Purchaser.
(l) Aggregation of Stock.
All Registrable Common Stock held by or acquired by any Affiliated Persons will
be aggregated together for the purpose of determining the availability of any
rights under this Agreement.
(m) Equitable Relief.
The parties hereto agree that legal remedies may be inadequate to enforce the
provisions of this Agreement and that equitable relief, including specific
performance and injunctive relief, may be used to enforce the provisions of
this Agreement.
IN WITNESS WHEREOF, this
Registration Rights Agreement has been duly executed and delivered by the duly
authorized officers of the parties hereto as of the date first herein above
written.
GREEN
BANKSHARES, INC.
By: /s/ Stephen M. Rownd
Name: Stephen M. Rownd
Title: Chairman,
President & CEO
NORTH AMERICAN FINANCIAL
HOLDINGS, INC.
By: /s/ Christopher G.
Marshall
Name: Christopher G.
Marshall
Title: Chief Financial
Officer
[Signature Page to
Registration Rights Agreement]
