EXHIBIT 4.4
EXECUTION COPY
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BANKVEST CAPITAL CORP.
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is made as of
February 28, 1997, by and among BankVest Capital Corp., a Massachusetts
corporation (the "COMPANY"), Primus Capital Fund III Limited Partnership, an
Ohio limited partnership ("PRIMUS"), PNC Venture Corp, a Delaware corporation
("PNC"), and Whitney Subordinated Debt Fund, LP ("WSDF") and amends and restates
the Registration Agreement (the "ORIGINAL AGREEMENT") made as of May 30, 1996 by
and among the Company, Primus and PNC.
The Company, Primus and PNC are parties to a Purchase Agreement dated as of
May 30, 1996 (the "PRIMUS/PNC PURCHASE AGREEMENT"). In order to induce Primus
and PNC to enter into the Primus/PNC Purchase Agreement, the Company agreed to
provide the registration rights set forth in the Original Agreement and the
execution and delivery thereof was a condition to the Closing under the
Primus/PNC Purchase Agreement.
The Company and WSDF are parties to a Securities Purchase Agreement of even
date herewith (the "WSDF PURCHASE AGREEMENT"). In order to induce WSDF to enter
into the WSDF Purchase Agreement and to induce Primus and PNC to consent to the
transactions contemplated therein, the Company has agreed to provide the
registration rights set forth in this Amended and Restated Registration Rights
Agreement. The execution and delivery of this Amended and Restated Registration
Rights Agreement is a condition to the Closing under the WSDF Purchase
Agreement.
Unless otherwise provided in this Agreement, capitalized terms used herein
shall have the meanings set forth in paragraph 9 hereof.
The parties hereto hereby agree as follows:
1. DEMAND REGISTRATIONS.
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(a) Requests for Registration. At any time after the third
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anniversary of the Closing under the Primus/PNC Purchase Agreement or such
earlier time as the Company has completed a public offering of its Common Stock
under the Securities Act, the holders of a majority of the Primus/PNC
Registrable Securities and the holders of a majority of the WSDF Registrable
Securities may each request registration under the Securities Act of all or any
portion of their Registrable Securities on Form S-1 or any similar long-form
registration ("LONG-FORM REGISTRATIONS"), and the holders of at least 25% of the
Primus/PNC Registrable Securities and the holder of at least 25% of the WSDF
Registrable Securities may each request registration under the Securities Act of
all or any portion of their Registrable Securities on Form S-2 or S-3 or any
similar short-form registration ("SHORT-FORM REGISTRATIONS") if available. All
registrations requested pursuant to this paragraph 1(a) are referred to herein
as "DEMAND REGISTRATIONS". Each request for
a Demand Registration shall specify the approximate number of Registrable
Securities requested to be registered and the anticipated per share price range
for such offering. Within ten days after receipt of any such request, the
Company shall give written notice of such requested registration to all other
holders of Registrable Securities and shall, subject to paragraph 1(d) below,
include in such registration all Registrable Securities with respect to which
the Company has received written re quests for inclusion therein within 15 days
after the receipt of the Company's notice.
(b) Long-Form Registrations. The holders of Primus/PNC Registrable
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Securities and the holders of WSDF Registrable Securities shall each be entitled
to request two Long-Form Registrations in which the Company shall pay all
Registration Expenses ("COMPANY-PAID LONG-FORM REGISTRATIONS"). A registration
shall not count as one of the permitted Company-paid Long-Form Registrations
until it has become effective, and neither the last or any subsequent Company-
paid Long-Form Registration shall count as one of the permitted Company-paid
Long-Form Registrations unless the holders of Registrable Securities are able to
register and sell at least 90% of the Registrable Securities requested to be
included in such registration; provided that in any event the Company shall pay
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all Registration Expenses in connection with any registration initiated as a
Company-paid Long-Form Registration whether or not it has become effective and
whether or not such registration has counted as one of the permitted Company-
paid Long-Form Registrations.
(c) Short-Form Registrations. In addition to the Long-Form
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Registrations provided pursuant to paragraph 1(b), the holders of Registrable
Securities shall be entitled to request an unlimited number of Short-Form
Registrations in which the Company shall pay all Registration Expenses. Demand
Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. After the Company has become
subject to the reporting requirements of the Securities Exchange Act, the
Company shall use its best efforts to make Short-Form Registrations on Form S-3
available for the sale of Registrable Securities.
(d) Priority on Demand Registrations. The Company shall not include
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in any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the Primus/PNC
Registrable Securities and a majority of the WSDF Registrable Securities
included in such registration. If a Demand Registration is an underwritten
offering and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities and/or, if permitted
hereunder, other securities requested to be included in such offering exceeds
the number of Registrable Securities and other securities, if any, which can be
sold in an orderly manner in such offering within a price range acceptable to
the holders of a majority of the Registrable Securities initially requesting
registration, the Company shall include in such registration prior to the
inclusion of any securities which are not Registrable Securities the number of
Registrable Securities requested to be included which in the opinion of such
underwriters can be sold in an orderly manner within the price range of such
offering, Pro Rata among the respective holders thereof. Any Persons other than
holders of Registrable Securities who participate in Demand Registrations which
are not at the Company's expense must pay their share of the Registration
Expenses as provided in paragraph 5 hereof.
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(e) Restrictions on Registrations. The Company shall not be
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obligated to effect any Long-Form Registration within 180 days after the
effective date of a previous Long-Form Registration. The Company may postpone
for up to 90 days the filing or the effectiveness of a registration statement
for a Demand Registration if the Company's board of directors determines in its
reasonable good faith judgment that such Demand Registration would reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company to engage in any acquisition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer, reorganization
or similar transaction; provided that in such event, the holders of Registrable
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Securities initially requesting such Demand Registration shall be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as one of the permitted Demand Registrations
hereunder and the Company shall pay all Registration Expenses in connection with
such registration. The Company may delay a Demand Registration hereunder only
once in any twelve-month period.
(f) Other Registration Rights. Except as provided in this Agreement,
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the Company shall 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, without the prior written
consent of the holders of a majority of the Primus/PNC Registrable Securities
and a majority of the WSDF Registrable Securities; provided that the Company may
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grant rights to other Persons to participate in Piggyback Registrations so long
as such rights are subordinate to the rights of the holders of Registrable
Securities with respect to such Piggyback Registrations.
2. PIGGYBACK REGISTRATIONS.
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(a) Right to Piggyback. Whenever the Company proposes to register
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any of its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "PIGGYBACK REGISTRATION"), the Company
shall give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and shall, subject to paragraphs 2(c)
and 2(d) below, include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within 20 days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
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Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration
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is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of the offering, the Company shall include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, Pro Rata
among the holders of such Registrable Securities, and (iii) third, other
securities requested to be included in such registration.
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(d) Priority on Secondary Registrations. If a Piggyback Registration
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is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration and the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such securities on the basis of the number of securities owned by each of the
holders requesting such registrations and the holders of Registrable Securities,
and as among the holders of Registrable Securities, Pro Rata among the holders
of such Registrable Securities, and (ii) second, other securities requested to
be included in such registration.
(e) Other Registrations. If the Company has previously filed a
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registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities
under the Securities Act (except on Form S-8 or any successor form), whether on
its own behalf or at the request of any holder or holders of such securities,
until a period of at least 90 days has elapsed from the effective date of such
previous registration.
3. HOLDBACK AGREEMENTS.
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(a) Each holder of Registrable Securities shall not effect any public
sale or distribution (including sales pursuant to Rule 144) of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 90-day
period beginning on the effective date of any underwritten Demand Registration
(except as part of such underwritten registration), unless the underwriters
managing the registered public offering otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree, and (ii) shall cause each holder of at least 2% of its Common
Stock, or any securities convertible into or exchangeable or exercisable for
Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
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Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company
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shall use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof (including the registration of Preferred Stock, Nonvoting Common Stock
and Warrants held by a holder of Registrable Securities requesting registration
as to which the Company has received reasonable assurances that only Registrable
Securities shall be distributed to the public), and pursuant thereto the Company
shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective; provided
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that before filing a registration statement or prospectus or any amendments or
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supplements thereto, the Company shall furnish to the counsel selected by the
holders of a majority of the Primus/PNC Registrable Securities and to the
counsel selected by the holders of a majority of the WSDF Registrable Securities
covered by such registration statement copies of all such documents proposed to
be filed (which documents shall be subject to the review and comment of such
counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission 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 nine months 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 the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided that the Company shall not be required to (i) qualify generally
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to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction; and provided further that anything in this Agreement to the
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contrary notwithstanding with respect to the bearing of expenses, if any
jurisdiction in which the Registrable Securities shall be qualified shall
require that expenses incurred in connection with the qualification of such
Registrable Securities in that jurisdiction be borne by the sellers of
Registrable Securities, then such expenses shall be payable by such sellers of
Registrable Securities Pro Rata to the extent required by such jurisdiction;
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(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within
the meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or,
failing that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Primus/PNC Registrable Securities or a majority of the WSDF
Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities (including effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all 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 any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company,
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to participate in the preparation of such registration or comparable statement
and to require the insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such holder and its counsel should
be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities; and
(n) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Primus/PNC Registrable Securities or holders of a majority of the WSDF
Registrable Securities being sold reasonably request; provided that such
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Registrable Securities constitute at least 10% of the securities covered by such
registration statement).
5. REGISTRATION EXPENSES.
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(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "REGISTRATION EXPENSES"), shall be borne as provided in this
Agreement, except that the Company shall, in any event, 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 similar securities issued by the Company are then
listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees (not to exceed $25,000
with respect to each such Demand and Piggyback Registration) and disbursements
of one counsel chosen by the holders of a majority of the Primus/PNC Registrable
Securities or the WSDF Registrable Securities initially requesting such
registration and the reasonable fees (not to exceed $15,000 with respect to each
such Demand and Piggyback Registration, and disbursements of one counsel chosen
by the holders of a majority of the holders of the other of the Primus/PNC
Registrable Securities or the WSDF Registrable
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Securities) and for the reasonable fees and disbursements of each additional
counsel retained by any holder of Registrable Securities for the purpose of
rendering a legal opinion on behalf of such holder in connection with any
underwritten Demand Registration or Piggyback Registration.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. INDEMNIFICATION.
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(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
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, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder shall furnish to
the Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company and
the underwriter, and their directors and officers and each Person who controls
the Company or the underwriter, as the case may be (within the meaning of the
Securities Act), against any losses, claims, damages, liabilities and expenses
resulting from 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 such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder; provided that the obligation to indemnify shall be individual, not
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joint and several, for each holder and shall be limited to the net amount of
proceeds received by such holder from the sale of Registrable Securities
pursuant to such registration statement.
(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 (provided that the failure to give prompt notice
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shall not impair any Person's right to indemnification
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hereunder to the extent such failure has not prejudiced the indemnifying party)
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 shall 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 for all parties
indemnified by such indemnifying party with respect to such claim (provided,
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however, if the Company is the indemnifying party, the Company shall be
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obligated to pay the fees and expenses for counsel for all parties indemnified
whose liability is derived from Primus/PNC Registrable Securities and one
counsel for all parties indemnified whose liability is derived from WSDF
Registrable Securities), unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim.
(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. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
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participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
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holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company and the underwriters with respect
thereto, except as otherwise provided in paragraph 6 hereof.
8. RULE 144 REPORTING. The Company agrees with Primus, PNC and WSDF as
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follows:
(a) The Company shall make and keep public information available as
those terms are understood and defined in Rule 144 under the Securities Act, at
all times from and after 90 days following the effective date of the first
registration of the Company under the Securities Act of an offering of its
securities to the general public.
(b) The Company shall file with the Commission in a timely manner all
reports and other documents as the Commission may prescribe under Section 13(a)
or 15(d) of the Exchange
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Act at any time after the Company has become subject to such reporting
requirements of the Exchange Act.
(c) The Company shall furnish to such holder of Registrable
Securities forthwith upon request (i) a written statement by the Company as to
its compliance with the reporting requirements of Rule 144 (at any time from and
after 90 days following the effective date of the first registration statement
of the Company for an offering of its securities to the general public), and of
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements), (ii) a copy of the most recent annual or
quarterly report of the Company, and (iii) such other reports and documents so
filed as a holder may reasonably request to avail itself of any rule or
regulation of the Commission allowing a holder of Restricted Stock to sell any
such securities without registration.
9. DEFINITIONS.
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(a) "PRIMUS/PNC REGISTRABLE SECURITIES" means (i) any Class A Common
issued upon the conversion of any Class A Preferred or the exercise of the Class
A Warrant issued pursuant to the Primus/PNC Purchase Agreement, (ii) any Class A
Common issued upon the conversion of any Class B Common issued upon conversion
of any Class B Preferred or the exercise of the Class B Warrant issued pursuant
to the Primus/PNC Purchase Agreement or the exercise of the Contingent Warrants
(if any) issued pursuant to the Primus/PNC Purchase Agreement, (iii) any Class A
Common issued upon the conversion of any Class A Preferred issued upon the
conversion of any Class B Preferred issued pursuant to the Primus/PNC Purchase
Agreement, (iv) any securities of the Company issued or issuable with respect to
the securities referred to in clauses (i), (ii) and (iii) above by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, and (v) any
other shares of Class A Common or other Common Stock held by Persons holding
securities described in clauses (i) to (iv), inclusive, above. Unless otherwise
stated, other capitalized terms contained in this definition have the meanings
set forth in the Primus/PNC Purchase Agreement.
(b) "PRO RATA" as applied to the allocation of Primus/PNC Registrable
Securities and WSDF Registrable Securities included in a registration statement
means:
(i) with respect to the allocation of Registrable Securities to be
included as between the holders of Primus/PNC Registrable Securities on the
one hand and WSDF Registrable Securities on the other hand, (A) up to one
half of the number of Registrable Securities to be included in such
registration statement shall be allocated 50 percent to the holders of
Primus/PNC Registrable Securities and 50 percent to the holders of WSDF
Registrable Securities, in each case to the full amount thereof requested
to be included in such registration statement, and (B) the balance of the
number of registrable Securities shall be allocated among the holders of
Primus/PNC Registrable Securities and WSDF Registrable Securities pro rata
on the basis of the number of Primus/PNC Registrable Securities and WSDF
Registrable Securities then outstanding; and
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(ii) with respect to the further allocation of Primus/PNC Registrable
Securities among the holders thereof or WSDF Registrable Securities among
the holders thereof, pro rata on the basis of the amount of Registrable
Securities owned by each holder.
(c) "REGISTRABLE SECURITIES" means the Primus/PNC Registrable
Securities or the WSDF Registrable Securities, or any of them, as the case may
be. As to any particular Registrable Securities, such securities shall cease to
be Registrable Securities when they have been distributed to the public pursuant
to an offering registered under the Securities Act or sold to the public through
a broker, dealer or market maker in compliance with Rule 144 under the
Securities Act (or any similar rule then in force) or repurchased by the Company
or any Subsidiary. For purposes of this Agreement, a Person shall be deemed to
be a holder of Registrable Securities, and the Registrable Securities shall be
deemed to be in existence, whenever such Person has the right to acquire
directly or indirectly such Registrable Securities (upon conversion or exercise
in connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected, and such Person shall be entitled
to exercise the rights of a holder of Registrable Securities hereunder.
(d) "WSDF REGISTRABLE SECURITIES" means the shares of common stock
of the Company issued or issuable upon exercise of the warrant to purchase
118,038 shares of Class A common stock of the Company and the warrant to
purchase up to an additional 53,654 shares of Class A common Stock being issued
to WSDF pursuant to the WSDF Purchase Agreement, and any securities of the
Company issued or issuable with respect to such common stock by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
10. MISCELLANEOUS.
-------------
(a) Selection of Investment Bankers. The selection of investment
-------------------------------
banker(s) and manager(s) for any public offering or private sale by the Company
of its securities must be approved by the holders of a majority of the
PNC/Primus Registrable Securities and a majority of the WSDF Registrable
Securities, which approval shall not be unreasonably withheld so long as such
investment banker(s) and manager(s) are of recognized national standing and, in
the case of a public offering, can reasonably be expected to provide the
requisite degree of analytical and other support to the Company and the
investing public following such offering.
(b) No Inconsistent Agreements. The Company shall not hereafter
--------------------------
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(c) Adjustments Affecting Registrable Securities. The Company shall
--------------------------------------------
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
-11-
(d) Remedies. Any Person having rights under any provision of this
--------
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(e) Amendments and Waivers. Except as otherwise provided herein, the
----------------------
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company, the holders of a majority of the Primus/PNC
Registrable Securities and the holders of a majority of the WSDF Registrable
Securities.
(f) Successors and Assigns. All covenants and agreements in this
----------------------
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(g) Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(h) Counterparts. This Agreement may be executed simultaneously in
------------
two or more counterparts (including by means of telecopied signature pages), any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same Agreement.
(i) Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
(j) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
-------------
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR
PROVISIONS (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF NEW YORK.
(k) Notices. All notices, demands or other communications to be
-------
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by
-12-
reputable overnight courier service (charges prepaid) or mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid.
Such notices, demands and other communications shall be sent to each party at
the address indicated below:
(i) If to the Company:
BankVest Capital Corp.
114 Turnpike Road
Westborough Executive Park
Westborough, Massachusetts 01581
Attention: President
with a copy to:
--------------
Goldstein & Manello, P.C.
265 Franklin Street
Boston, Massachusetts 02110
Attention: Richard J. Snyder
(ii) If to Primus:
Primus Capital Fund III
Limited Partnership
One Cleveland Center
Suite 2700
Cleveland, Ohio 44114
Attention: Kevin J. McGinty
with a copy to:
--------------
Kirkland & Ellis
200 E. Randolph Drive
Chicago, Illinois 60601
Attention: Ted H. Zook
(iii) If to PNC Venture Corp.:
PNC Venture Corp
c/o PNC Equity Management Corp.
One PNC Plaza, 19th Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222
Attention: Gary J. Zentner
-13-
with a copy to:
--------------
Kirkland & Ellis
200 E. Randolph Drive
Chicago, Illinois 60601
Attention: Ted H. Zook
(iv) If to WSDF:
Whitney Subordinated Debt Fund, LP
177 Broad Street - 1st Floor
Stamford, Connecticut 06901
Attention: James H. Fordyce
David J. O'Brien
with a copy to:
--------------
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022
Attention: David Scherl
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
-14-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BANKVEST CAPITAL CORP.
By _______________________________________
Its _______________________________________
PRIMUS CAPITAL FUND III LIMITED
PARTNERSHIP
By: Primus Venture Partners III
Limited Partnership, its general partner
By: Primus Venture Partners, Inc.,
its general partner
By _______________________________________
Its _______________________________________
PNC VENTURE CORP
By _______________________________________
Its _______________________________________
WHITNEY SUBORDINATED DEBT FUND,
LP
By _______________________________________
Its _______________________________________
[EXECUTION COPY]
BANKVEST CAPITAL CORP.
FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
--------------------------------------------------
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (the "Agreement") is made as of May 28, 1998, by and among BankVest
---------
Capital Corp., a Massachusetts corporation (the "Company"), Primus Capital Fund
-------
III Limited Partnership, an Ohio limited partnership ("Primus"), PNC Venture
------
Corp, a Delaware corporation ("PNC"), and Whitney Subordinated Debt Fund, L.P.,
---
a Delaware limited partnership ("WSDF").
----
WHEREAS, the parties to this Agreement are parties to an Amended and
Restated Registration Rights Agreement, dated as of February 28, 1997 (the
"Amended and Restated Registration Rights Agreement").
- ---------------------------------------------------
WHEREAS, Primus and PNC are parties to a Purchase Agreement of even
date herewith (the "1998 Purchase Agreement"). In order to induce Primus and
-----------------------
PNC to enter into the 1998 Purchase Agreement, the Company has agreed to provide
the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the Closing under the 1998 Purchase
Agreement. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Amended and Restated Registration Rights
Agreement.
WHEREAS, the parties hereto desire to amend the Amended and Restated
Registration Rights Agreement as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereby agree as follows:
1. Piggyback Registrations. The parties hereto hereby agree that
-----------------------
paragraph 2(a) of the Amended and Restated Registration Rights Agreement shall
be amended and restated as follows:
"(a) Right to Piggyback. Whenever the Company proposes to register
------------------
any of its securities under the Securities Act (other than pursuant to
a Demand Registration or an Employee Shelf Registration) and the
registration form to be used may be used for the registration of
Registrable Securities (a "PIGGYBACK REGISTRATION"), the Company shall
give prompt written notice to all holders of Registrable Securities of
its intention to effect such a registration and shall, subject to
paragraphs 2(c) and 2(d) below, include in such registration all
Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 20 days after the
receipt of the Company's notice."
2. Definitions. The parties hereto hereby agree that the following
-----------
definitions shall be added or amended and included in the definitions contained
in paragraph 9 of the Amended and Restated Registration Rights Agreement.
(a) Employee Registrable Securities. The term "Employee Registrable
-------------------------------
Securities" is hereby added to paragraph 9 of the Amended and Restated
Registration Rights Agreement as follows:
"'Employee Registrable Securities' means (i) any shares
-------------------------------
of Class A Common issued pursuant to that certain
Confidential Private Placement Memorandum prepared by and on
behalf of the Company and dated as of December 1, 1995
constituting an aggregate of 36,000 shares of Class A
Common, (ii) any shares of Class A Common issued pursuant to
that certain October 6, 1997 Private Placement Memorandum
constituting an aggregate of 38,750 shares of Class A
Common, (iii) any shares of Class A Common issued to Cathy
F. Sutton, Daniel C. Chagnon, Dennis J. Conlon, Kellie D.
Jacques and Michael P. Karman in 1995 constituting an
aggregate of 28,000 shares of Class A Common and (iv) any
securities of the Company issued or issuable with respect to
the securities referred to in clauses (i), (ii) and (iii)
above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. Employee
Registrable Securities shall exclude any shares of Common
Stock of the type described in clauses (i), (ii) or (iii)
above that were purchased by Paul S. Gass or John P. Colton.
Unless otherwise stated, other capitalized terms contained
in this definition have the meanings set forth in the 1998
Purchase Agreement."
(b) Primus/PNC Registrable Securities. The term "Primus/PNC Registrable
---------------------------------
Securities" as it appears in paragraph 9 of the Amended and Restated
Registration Rights Agreement is hereby deleted and replaced in its
entirety with the following:
"'Primus/PNC Registrable Securities' means (i) any Class
---------------------------------
A Common issued upon the conversion of any Class A Preferred
or the exercise of the Class A Warrant issued pursuant to
the Primus/PNC Purchase Agreement, (ii) any Class A Common
issued upon the conversion of any Class B Common issued upon
conversion of any Class B Preferred or the exercise of the
Class B Warrant issued pursuant to the Primus/PNC Purchase
Agreement or the exercise of the Contingent Warrants (if
any) issued pursuant to the Primus/PNC Purchase Agreement,
(iii) any Class A Common issued upon the conversion of any
Class A Preferred issued upon the conversion of any Class B
Preferred issued pursuant to the Primus/PNC Purchase
Agreement, (iv) any Class A Common issued upon the
conversion
-2-
of any Class C Preferred issued pursuant to the 1998
Purchase Agreement, (v) any Class A Common issued upon the
conversion of any Class B Common issued upon conversion of
any Class D Preferred issued pursuant to the 1998 Purchase
Agreement or the exercise of the Contingent Warrants (if
any) issued pursuant to the 1998 Purchase Agreement, (vi)
any Class A Common issued upon the conversion of any Class C
Preferred issued upon the conversion of any Class D
Preferred issued pursuant to the 1998 Purchase Agreement,
(vii) any securities of the Company issued or issuable with
respect to the securities referred to in clauses (i), (ii),
(iii), (iv), (v) and (vi) above by way of a stock dividend
or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other
reorganization, and (viii) any other shares of Class A
Common or other Common Stock held by Persons holding
securities described in clauses (i) to (vii), inclusive,
above. Unless otherwise stated, other capitalized terms
contained in this definition have the meanings set forth in
the Primus/PNC Purchase Agreement and the 1998 Purchase
Agreement (as the case may be).
(c) 1998 Purchase Agreement. The term "1998 Purchase Agreement" shall be
-----------------------
added to the definitions contained in paragraph 9 of the Amended and
Restated Registration Rights Agreement and such term shall read as
follows:
"'1998 Purchase Agreement' means the Purchase Agreement,
-----------------------
dated as of May 28, 1998, by and among the Company, Primus
and PNC."
3. Certain Shelf Registration. The parties hereto hereby agree that
--------------------------
the following paragraph shall be added and included as a new paragraph 11 of the
Amended and Restated Registration Rights Agreement:
"Certain Shelf Registration. The holders of Primus/PNC
--------------------------
Registrable Securities and the holders of WSDF Registrable
Securities agree that, notwithstanding anything to the
contrary in this Agreement, the Company may grant the
registration rights described in this paragraph 11 to the
holders of Employee Registrable Securities. At any time
following the sixth month anniversary of the consummation of
an initial Public Offering (as defined in the 1998 Purchase
Agreement) or such earlier time as the underwriters managing
such initial Public Offering may deem acceptable, the
holders of Employee Registrable Securities may request that
the Company use its best efforts to prepare and file with
the Securities and Exchange Commission a shelf registration
statement (as amended and supplemented from time to time,
the "Shelf Registration Statement") relating to the sale by
----------------------------
the holders of Employee Registrable Securities of Employee
Registrable Securities in accordance with Rule 415 under the
Securities Act (or
-3-
any similar rule that may be adopted by the Securities and
Exchange Commission) and to use its best efforts to keep
such Shelf Registration Statement effective for the period
commencing on the date on which the Securities and Exchange
Commission declares such Shelf Registration Statement
effective and ending 180 days following the date of such
declaration (the "Shelf Registration Period"). It being
-------------------------
understood that the total number of Employee Registrable
Securities that may be issued pursuant to such Shelf
Registration Statement shall not exceed 102,750 shares of
Class A Common as indicated on Exhibit A attached hereto,
---------
except as such number is adjusted pursuant to a stock
dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or other
reorganization. The Company shall have the right to delay
filing the Shelf Registration Statement and delay causing
the Shelf Registration Statement to become effective, if the
Company determines, with respect to the advisability (as
determined in good faith) of deferring public disclosure of
material corporate developments or other information, that
use of the Shelf Registration Statement and the disclosure
required to be made therein would not be in the best
interests of the Company at such time. In addition, the
Company shall have the right to prohibit the transfer of any
Employee Registrable Securities pursuant to the Shelf
Registration Statement (a "Delay Period") for a reasonable
------------
length of time, if the Company determines, with respect to
the advisability (as determined in good faith) of deferring
public disclosure of material corporate developments or
other information, that use of the Shelf Registration
Statement and the disclosure required to be made therein
would not be in the best interests of the Company at such
time. In the event of a Delay Period, the Shelf Registration
Period shall be extended by the number of days constituting
such Delay Period. The Company shall use its reasonable
efforts to minimize the length of a Delay Period, if any.
Any registration described in this paragraph 11 is referred
to herein as the "Employee Shelf Registration." The Company
---------------------------
shall provide written notice to the holders of Employee
Registrable Securities of a Delay Period, if any. Any
changes to the registration rights described in this
paragraph 11 shall require the prior written consent of the
holders of a majority of the Primus/PNC Registrable
Securities and the holders of a majority of the WSDF
Registrable Securities.
* * * * *
-4-
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Amended and Restated Registration Rights Agreement as of the date first written
above.
BANKVEST CAPITAL CORP.
By ________________________________________
Its ________________________________________
PRIMUS CAPITAL FUND III LIMITED PARTNERSHIP
By: Primus Venture Partners III Limited Partnership,
its general partner
By: Primus Venture Partners, Inc., its general partner
By ________________________________________
Its ________________________________________
PNC VENTURE CORP
By ________________________________________
Its ________________________________________
WHITNEY SUBORDINATED DEBT FUND, L.P.
By ________________________________________
Its ________________________________________
-5-
EXHIBIT A
---------
[SEE ATTACHED]
-6-