REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
December 11, 2006 between First Keystone Financial, Inc., a Pennsylvania
corporation (the "Company"), and each of the Persons (as defined below) who have
executed this Agreement and are named in Annex A hereto (each, an "Investor"
and, collectively, the "Investors").
Execution and delivery of this Agreement by the parties hereto are
conditions to each Investor purchasing Shares (as defined below) from the
Company under the Subscription Agreement (as defined below). Accordingly, the
parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Section 1 have the meanings herein specified for all purposes of
this Agreement, applicable to both the singular and plural forms of such terms:
"Closing Date" means the first date on which the Company accepts funds from
escrow pursuant to the Escrow Agreement, by and between the Company and
Wilmington Trust Company.
"Common Stock" means the common stock, $0.01 par value per share, of the
Company.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means the record owner of Registrable Securities.
"Person" means any natural person, corporation, trust, association, limited
liability company, partnership, joint venture or other entity and any
government, governmental agency, instrumentality or political subdivision.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" means the Shares and any shares of capital stock
issued or issuable from time to time as a dividend or other distribution with
respect to, or in exchange for or in replacement of, the Shares if and so long
as: (i) they have not been sold to or through a broker or dealer or underwriter
in a public distribution or a public securities transaction; or (ii) they have
not been sold in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act under Section 4(1) thereof so that
all transfer restrictions and restrictive legends with respect to such Shares
are removed upon the consummation of such sale; or (iii) they could not be sold
without registration by any Holder thereof pursuant to Rule 144 promulgated
under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the shares of Common Stock sold and issued to the Investors
pursuant to the Subscription Agreement.
"Subscription Agreement" means one or more Subscription Agreements of even
date herewith between the Company and each Investor relating to the purchase and
sale of the Shares.
SECTION 2. REQUIRED REGISTRATION.
(a) Subject to the receipt of all necessary information from the
Investors, the Company shall use its reasonable best efforts to prepare and file
a "shelf" registration statement on Form S-3 under the Securities Act covering
an offering of the Registrable Securities on a continuous basis pursuant to Rule
415 under the Securities Act (the "Registration Statement"), on or before the
date that is ninety (90) days after the Closing Date (the "Filing Date"), and
shall use its reasonable best efforts to cause such Registration Statement to
become effective as soon as practicable after filing, and in any event no later
than one-hundred eighty (180) days after the Closing Date (the "Effectiveness
Date"); provided, however, that if the Company receives notification from the
Commission that the Registration Statement will receive no action or review from
the Commission, then the Company will, subject to its rights under Section 2(c)
below, use its reasonable best efforts to cause the Registration Statement to
become effective within five (5) business days after such Commission
notification. Notwithstanding the foregoing, if Form S-3 is not available for
use by the Company, then the Company will file a registration statement on such
form as is then available to effect a registration of the Registrable
Securities, subject to the consent of the Holders of a majority of the
Registrable Securities then outstanding, which consent will not be unreasonably
withheld, conditioned or delayed.
(b) The Company shall use its reasonable best efforts to maintain the
effectiveness of the Registration Statement under the Securities Act until the
earlier of: (i) the date that is two (2) years after the Closing Date; or (ii)
the date on which all of the Registrable Securities have been sold pursuant to
the Registration Statement or no longer constitute Registrable Securities (the
"Registration Period").
(c) Notwithstanding the foregoing, the Company's obligations under
Sections 2(a) and 2(b) to file a Registration Statement, and to use its
reasonable best efforts to cause such Registration Statement to become and
remain effective, shall be suspended, at the option of the Company, for a total
of not more than ninety (90) days (an "Allowed Delay") if the Company determines
in good faith that an event has occurred or a condition exists that results or
may result in a Misstatement (as defined in Section 10 below), provided,
however, that such right may not be exercised more than once in any twelve month
period.
SECTION 3. DEMAND REGISTRATION.
(a) If, at any time after the Effectiveness Date and prior to the
expiration of the Registration Period, a Registration Statement is not effective
with respect to all of the Shares (except by reason of an Allowed Delay), the
Holders of a majority of the Registrable Securities then outstanding (the
"Majority Holders") may request registration under the Securities Act of all or
part of their Registrable Securities ("Demand Registration") on Form S-3, if
available, or, if Form S-3 is not available for the Demand Registration, on such
form as may be prescribed by the
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Commission. Each request for a Demand Registration shall specify the number of
Registrable Securities requested to be registered and the anticipated per share
price range for such offering. Within ten (10) days after receipt of any request
for a Demand Registration, the Company will, subject to the other provisions of
this Agreement, give written notice of such requested registration to all other
Holders of Registrable Securities, if any, and, subject to Section 1(c) below,
will include in such registration the Registrable Securities of any such Holder
from which the Company has received a written request for inclusion therein
within fifteen (15) days after the receipt by such Holder of the Company's
notice.
(b) The Majority Holders will be entitled to request no more than two
(2) Demand Registrations. The Company will pay all expenses (pursuant to Section
6 herein); provided that a registration will not count as one of the permitted
Demand Registrations until it has become effective and unless the Holders of
Registrable Securities are able to register at least eighty percent (80%) of the
Registrable Securities requested to be included in such registration (excluding
from such calculation any Registrable Securities held by a Holder that is
excluded from participating in such registration for failing to provide any
information required by this Agreement); and provided, further, that in any
event, the Company will pay all expenses in connection with any registration
initiated as a Demand Registration whether or not it has become effective and
whether or not it is counted as a permitted Demand Registration.
(c) The Company will not include in any Demand Registration any
securities that are not Registrable Securities without the prior written consent
of the Holders of a majority of the Registrable Securities included in such
registration. If a Demand Registration is an underwritten offering and the
managing underwriters in good faith advise the Company in writing that in their
judgment the number of Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, that can be sold therein
without materially reducing the price of such Registrable Securities, the
Company will include in such registration, prior to the inclusion of any
securities that are not Registrable Securities, the number of Registrable
Securities requested to be included, in the good faith judgment of such
underwriters can be sold without materially reducing the price of such
Registrable Securities, pro rata among the respective Holders of Registrable
Securities on the basis of the number of shares of Registrable Securities that
each Holder of Registrable Securities has requested to be included in such
registration.
(d) The investment banker(s) and managing underwriter(s), if any,
administering an offering initiated as a Demand Registration shall be the
investment bankers and managing underwriters selected by the Company and
consented to by the Holders of a majority of the Registrable Securities included
in any such Demand Registration at the time of its effectiveness, which consent
will not be unreasonably withheld.
(e) The Company will not grant to any Persons the right to request the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, that would
be superior to or otherwise interfere with the registration rights granted
hereunder. The Company represents and warrants to the Investor that no Person
has the contractual right to require the Company to register any equity
securities of the Company other than pursuant to this Agreement.
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SECTION 4. REGISTRATION PROCEDURES. If and whenever the Company is required
by the provisions of Section 2 or 3 hereof to effect the registration of
Registrable Securities under the Securities Act, the Company will:
(a) In accordance with the Securities Act and all applicable rules and
regulations thereunder, prepare and file with the Commission a registration
statement with respect to such securities and use its reasonable best efforts to
cause such registration statement to become effective, and use its reasonable
best efforts to cause such registration statement to remain effective (including
preparing and filing with the Commission such amendments and supplements to such
registration statement and the prospectus contained therein as may be necessary
to keep such registration statement effective) until two years following the
Closing Date, until the Registrable Securities covered by such registration
statement have been sold or no longer constitute Registrable Securities or as
otherwise set forth in Section 2 or 3;
(b) If the offering is to be underwritten in whole or in part, enter
into a customary written underwriting agreement in form and substance reasonably
satisfactory to the managing underwriter of the public offering, the Company and
the Holders of a majority of the Registrable Securities participating in such
offering;
(c) Furnish to the Holders participating in such registration and to
the underwriters, if any, of the securities being registered such number of
copies of the registration statement and each amendment and supplement thereto,
preliminary prospectus, final prospectus and such other documents as such
underwriters, if any, and Holders may reasonably request in order to facilitate
the public offering of such securities;
(d) Use its reasonable best efforts to register or qualify the
securities covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as such participating Holders and
underwriters if any, may reasonably request prior to the effectiveness of such
registration statement;
(e) Notify the Holders participating in such registration, promptly
after it receives notice thereof, of the date and time when such registration
statement and each post-effective amendment thereto has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
(f) Notify such Holders promptly of any request by the Commission to
amend or supplement such registration statement or prospectus or for additional
information;
(g) Prepare and file with the Commission, promptly upon the request of
any such Holders, any amendments or supplements to such registration statement
or prospectus which, in the written opinion of counsel for such Holders, which
opinion shall be reasonably acceptable to counsel for the Company, is required
under the Securities Act or the rules and regulations of the Commission
thereunder in connection with the distribution of the Registrable Securities by
such Holders;
(h) Prepare and file promptly with the Commission, and promptly notify
such Holders of the filing of, such amendments or supplements to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a
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prospectus relating to such securities is required to be delivered under the
Securities Act, any event has occurred as the result of which any such
prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(i) Advise such Holders, promptly after it receives notice or obtains
knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its reasonable
best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued; and
(j) At the request of any Holder of Registrable Securities covered by
such registration statement, furnish to such Holder on the effective date of the
registration statement or, if such registration includes an underwritten public
offering, at the closing provided for in the underwriting agreement, an opinion
of the counsel representing the Company for the purposes of such registration,
dated as of the date of closing, addressed to the underwriters, if any, and to
the Holder or Holders making such request, covering such matters with respect to
the registration statement, the prospectus and each amendment or supplement
thereto, proceedings under state and federal securities laws, other matters
relating to the Company, the securities being registered and the offer and sale
of such securities as are customarily the subject of opinions of issuer's
counsel provided to underwriters in underwritten public offerings.
(k) Provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the Effectiveness Date.
SECTION 5. ACCURACY OF REGISTRATION STATEMENT. Subject to the Company's
rights under Section 10, any registration statement (including any amendments or
supplements thereto and prospectuses contained therein) filed by the Company
covering Registrable Securities will not 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, in light of the circumstances in which
they were made, not misleading. Subject to the limitations set forth in Section
10, the Company will prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to any registration
statement and the prospectus used in connection with the registration statement
as may be necessary to permit sales pursuant to the registration statement at
all times during the Registration Period, and, during such period, will comply
with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities of the Company covered by any registration statement
until the termination of the Registration Period, or if earlier, until such time
as all of such Registrable Securities have been disposed of in accordance with
the intended methods of disposition by the seller or sellers thereof as set
forth in the registration statement.
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SECTION 6. ADDITIONAL OBLIGATIONS OF THE COMPANY.
6.1 Review by Investors. The Company will permit Barack Ferrazzano
Kirschbaum Perlman & Nagelberg LLP to review any registration statement covering
Registrable Securities and all amendments and supplements thereto (as well as
all requests for acceleration or effectiveness thereof) a reasonable period of
time prior to their filing with the Commission, and will not file any document
in a form to which such counsel reasonably objects, unless otherwise required by
law in the opinion of the Company's counsel. The sections of any such
registration statement including information with respect to the Investors, the
Investors' beneficial ownership of securities of the Company or the Investors'
intended method of disposition of Registrable Securities must conform to the
information provided to the Company in writing by each of the Investors.
6.2 Expenses. With respect to the registration effected pursuant to Section
2 or 3 hereof, the Company will bear all fees, costs and expenses of and
incidental to such registration and the public offering in connection therewith;
provided, however, that the Company shall not be liable for any underwriting
discounts and commissions, which in all cases shall be borne by the Holders.
Such fees, costs and expenses of registration to be borne as provided in the
preceding sentence, include, without limitation, all registration, filing and
NASD fees, printing expenses, fees and disbursements of counsel and accountants
for the Company, all expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered or qualified and reasonable fees and disbursements of one firm of
counsel for all selling security holders, selected by the Holders of a majority
of the Registrable Securities to be included in such registration, and
reasonably acceptable to the Company.
6.3 Due Diligence. The Company will make available during normal business
hours for inspection by any Investor whose Registrable Securities are being sold
pursuant to a registration statement and one firm of counsel retained by the
Investors for use by all Investors (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as each Inspector
reasonably deems necessary to enable the Inspector to exercise its due diligence
responsibility. The Company will cause its officers, directors and employees to
supply all information that any Inspector may reasonably request for purposes of
performing such due diligence, subject to any applicable restrictions. Each
Inspector will hold in confidence, and will not make any disclosure of, any
Records or other information that the Company determines in good faith to be
confidential, and of which determination the Inspectors are so notified, unless:
(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in any registration statement; (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court or
government body of competent jurisdiction, or (iii) the information in such
Records has been made generally available to the public other than by disclosure
in violation of this or any other agreement.
Notwithstanding any of the foregoing, nothing herein shall obligate the
Company to provide to the Investors, or to any advisors or representatives of
the Investors, any material nonpublic information. The Company shall not
disclose material nonpublic information to the Investors, or to advisors to or
representatives of the Investors, unless prior to disclosure of such information
the Company identifies such information as being material nonpublic information
and provides the
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Investors, such advisors and representatives with the opportunity to accept or
refuse to accept such material nonpublic information for review and any Investor
wishing to obtain such information enters into an appropriate confidentiality
agreement with the Company with respect thereto.
SECTION 7. INDEMNIFICATION.
(a) The Company will, and does hereby undertake to, indemnify and hold
harmless each Holder, each of its officers, directors and partners, and each
person controlling such Holder within the meaning of the Securities Act, with
respect to which registration, qualification or compliance has been effected
pursuant to this Agreement, and each underwriter, if any, and each person who
controls any underwriter within the meaning of the Securities Act, against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), including settlement of any litigation, commenced or threatened, to
which they may become subject under the Securities Act, the Exchange Act, or
other federal or state law, arising out of or based on compliance with, any
untrue statement (or alleged untrue statement) of a material fact contained in
any registration statement, prospectus (preliminary or final), offering circular
or other document or amendments thereto, or arising out of or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or arising out of or any
violation by the Company of any federal, state or common law rule or regulation
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance,
and will reimburse each such Holder, each of its officers, directors and
partners, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument executed by such Holder or underwriter expressly for use in
connection with such registration.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify and hold harmless the Company, each of
its directors and officers, agents and employees, each underwriter, if any, of
the Company's securities covered by such a registration statement, each person
who controls the Company or such underwriter within the meaning of the
Securities Act, and each other such Holder, each of its officers, directors and
partners and each person controlling such Holder within the meaning of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof to which they may become subject) arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact contained
in any such registration statement, prospectus, offering circular or other
document, or amendments thereto, or any omission (or alleged omission) to state
therein a material fact required to be stated therein in light of the
circumstances in which they were made, or necessary to make the statements
therein, not misleading, and will reimburse the Company, such Holders, such
directors, officers, persons, underwriters or control persons for any legal or
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or
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omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
executed by such Holder expressly for use in connection with such registration;
provided, however, that the obligations of such Holders hereunder shall be
limited to an amount equal to the proceeds to each such Holder of Registrable
Securities from the sale of such Registrable Securities as contemplated herein.
(c) Each party entitled to indemnification under this Section (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
deliver written notice to the Indemnifying Party of commencement thereof. The
Indemnifying Party, at its sole option, may participate in or assume the defense
of any such claim or any litigation resulting therefrom with counsel reasonably
satisfactory to the Indemnified Party, and the Indemnified Party may participate
in such defense at Indemnified Party's expense; provided, however, in no event
shall the Indemnifying Party be liable for fees and expenses of more than one
counsel (in addition to not more than one local counsel in each separate
jurisdiction in which any action or proceeding is commenced) separate from their
own counsel for all Indemnified Parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the Indemnified Party or any officer, director or controlling person of such
Indemnified Party and will survive the transfer of Registrable Securities. The
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section except to
the extent that such failure to give notice shall materially adversely affect
the Indemnifying Party in the defense of any such litigation. No Indemnifying
Party, in the defense of any such claim or litigation shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term a release
from all liability in respect to such claim or litigation by the claimant or
plaintiff to such Indemnified Party.
(e) If the indemnification provided for in subsection (a) or (b) of
this Section is held by a court of competent jurisdiction to be unavailable to a
party to be indemnified with respect to any claims, actions, demands, losses,
damages, liabilities, costs or expenses referred to therein, then each
Indemnifying Party under any such subsection, in lieu of indemnifying such
Indemnified Party thereunder, agrees to contribute to the amount paid or payable
by such Indemnified Party as a result of such claims, actions, demands, losses,
damages, liabilities, costs 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
which resulted in such claims, actions, demands, losses, damages, liabilities,
costs or expenses, as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party will 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 the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, the amount any Holder of Registrable Securities
will be obligated to contribute pursuant to this subsection will be limited to
an amount
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equal to the per share public offering price (less any underwriting discount and
commissions) multiplied by the number of shares of Registrable Securities sold
by such Holder pursuant to the registration statement which gives rise to such
obligation to contribute (less the aggregate amount of any damages which such
Holder has otherwise been required to pay in respect of such claim, action,
demand, loss, damage, liability, cost or expense or any substantially similar
claim, action, demand, loss, damage, liability, cost or expense arising from the
sale of such Registrable Securities). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution hereunder from any person who was not guilty of
such fraudulent misrepresentation.
SECTION 8. REPORTING REQUIREMENTS UNDER EXCHANGE ACT. The Company will
maintain the effectiveness of its registration of Common Stock under Section 12
of the Exchange Act and timely file (whether or not it is then required to do
so) such information, documents and reports as the Commission may require or
prescribe under Section 15(d) of the Exchange Act. The Company will, forthwith
upon written request, furnish to any Holder of Registrable Securities a written
statement by the Company that it has complied with such reporting requirements
in all material respects. In addition, the Company will take such other measures
and file such other information, documents and reports, as may be required of it
hereafter by the Commission as a condition to the availability of Rule 144 under
the Securities Act (or any similar exemptive provision hereafter in effect).
SECTION 9. HOLDER INFORMATION. The rights of each Holder of Registrable
Securities to participate in any registration to be effected pursuant to this
Agreement is subject to such Holder furnishing the Company with such information
with respect to such Holder and the distribution of such Registrable Securities
as the Company may from time to time reasonably request and as may be required
by law or by the Commission in connection therewith, and each Holder of
Registrable Securities as to which any registration is to be effected pursuant
to this Agreement shall furnish the Company with such information by a written
instrument executed by such Holder.
SECTION 10. SUSPENSION OF SALES. Upon receipt of written notice from the
Company that a registration statement or prospectus contains an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (a
"Misstatement"), each Holder of Registrable Securities shall forthwith
discontinue disposition of Registrable Securities until such Holder has received
copies of the supplemented or amended prospectus that corrects such
Misstatement, or until such Holder is advised in writing by the Company that the
use of the prospectus may be resumed, and, if so directed by the Company, such
Holder shall 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 current at the time of receipt of such
notice.
SECTION 11. FORMS. All references in this Agreement to particular forms of
registration statements are intended to include, and will be deemed to include,
references to all successor forms which are intended to replace, or to apply to
similar transactions as, the forms herein referenced.
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SECTION 12. MISCELLANEOUS.
12.1 Waivers and Amendments. With the written consent of the Holders of a
majority of the Registrable Securities then outstanding, the obligations of the
Company and the rights of the Holders under this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively and
either for a specified period of time or indefinitely), and with the same
consent the Company may enter into a supplementary agreement for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of any supplemental agreement or modifying in
any manner the rights and obligations hereunder of the Holders and the Company;
provided, however, that no such waiver or supplemental agreement may reduce the
aforesaid proportion of Registrable Securities, the Holders of which are
required to consent to any waiver or supplemental agreement, without the consent
of the Holders of all the Registrable Securities; and provided further, and
notwithstanding any provision herein to the contrary, that any such waiver,
amendment or supplement that applies only to a particular registration shall
require only the written consent of the Holders of a majority of the Registrable
Securities included in such registration. Upon the effectuation of each such
waiver, consent or agreement of amendment or modification, the Company will give
prompt written notice thereof to the Holders of the Registrable Securities who
have not previously consented thereto in writing. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally or by
course of dealing, except by a statement in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought,
except to the extent provided in this Section 12.1. Specifically, but without
limiting the generality of the foregoing, the failure of any Investor at any
time or times to require performance of any provision hereof by the Company will
not affect the right of any Investor at a later time to enforce the same. No
waiver by any party of the breach of any term or provision contained in this
Agreement, in any one or more instances, will be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
12.2 Effect of Waiver or Amendment. Each Investor acknowledges that by
operation of Section 12.1 the Holders of a majority of the Registrable
Securities will, subject to the limitations contained in Section 12.1, have the
right and power to diminish or eliminate certain rights of such Investor under
this Agreement.
12.3 Rights of Investors Inter Se. Each Investor has the absolute right to
exercise or refrain from exercising any right or rights which such Investor may
have by reason of this Agreement or any Registrable Security, including, without
limitation, the right to consent to the waiver of any obligation of the Company
under this Agreement and to enter into an agreement with the Company for the
purpose of modifying this Agreement or any agreement effecting any such
modification, and such Investor will not incur any liability to any other
Investor or Investors with respect to exercising or refraining from exercising
any such right or rights.
12.4 Notices. All notices, requests, consents and other communications
required or permitted hereunder will be in writing and will be delivered, or
mailed first class postage prepaid, registered or certified mail,
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(a) If to any Investor, addressed to such Investor at its address
shown on Annex A hereto, or at such other address as such Investor may specify
by written notice to the Company; or
(b) If to the Company, at 22 West State Street, Media, Pennsylvania
19063, Attn: Thomas M. Kelly, President, with a copy to Elias, Matz, Tiernan &
Herrick L.L.P., 12th Floor, 734 15th Street, N.W. Washington, D.C. 20005, Attn:
Raymond A. Tiernan, or at such other address as the Company may specify by
written notice to the Investors;
and each such notice, request, consent and other communication will for all
purposes of this Agreement be treated as being effective or having been given
when delivered, if delivered personally, or, if sent by mail, at the earlier of
its actual receipt or three (3) days after the same has been deposited in a
regularly maintained receptacle for the deposit of United States mail, addressed
and postage prepaid as aforesaid.
12.5 Severability. If any one or more of the provisions of this Agreement
or of any agreement entered into pursuant to this Agreement is determined to be
illegal or unenforceable, it is the intention of the parties hereto that all
other provisions of this Agreement and of each other agreement entered into
pursuant to this Agreement should be given effect separately from the provision
or provisions determined to be illegal or unenforceable and not be affected
thereby.
12.6 Parties in Interest. All the terms and provisions of this Agreement
will be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto, whether so expressed or
not and, in particular, will inure to the benefit of and be enforceable by the
Holder or Holders at the time of any registration of Registrable Securities.
Subject to the immediately preceding sentence, this Agreement will not run to
the benefit of or be enforceable by any Person other than a party to this
Agreement and its successors and assigns.
12.7 Headings. The headings of the sections, subsections and paragraphs of
this Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
12.8 Entire Agreement. This Agreement constitutes the entire understanding
of the parties hereto and supersedes all prior understanding among such parties.
12.9 Choice of Law. This Agreement and any and all matters related to or
arising under this Agreement shall be governed by the internal laws of the
Commonwealth of Pennsylvania, regardless of any provisions on choice of or
conflicts of law.
12.10 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts will be deemed an original, will be construed together and will
constitute one and the same instrument.
12.11 Assignment of Registration Rights. The rights of the Investors
hereunder, including the right to have the Company register Registrable
Securities pursuant to this Agreement, will be automatically assigned by the
Investors to transferees or assignees of all or any portion of the Registrable
Securities, but only if: (a) the Investor agrees in writing with the transferee
or assignee
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to assign such rights, and a copy of such agreement is furnished to the Company
promptly after such assignment; (b) the Company is, promptly after such transfer
or assignment, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being transferred or assigned; (c) after such transfer
or assignment the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act and applicable state securities
laws; and (d) at or before the time the Company received the written notice
contemplated by clause (b) of this sentence, the transferee or assignee agrees
in writing with the Company to be bound by all of the provisions contained
herein.
(Signature page follows)
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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.
FIRST KEYSTONE FINANCIAL, INC.
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Printed Name of Investor
By: By:
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Name: Name:
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Title: Title:
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