Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT is made as of March 31, 1999 by and
among FIRST INTERNATIONAL BANCORP, INC. (the "Company"), and NANCY W. SILVERS
and THE SILVERS FAMILY TRUST (collectively, the "Stockholders").
The Company is issuing 200,000 shares of the Common Stock of the Company on
the date hereof to Brett Silvers, Chairman, Chief Executive Officer and
President of the Company, who is transferring such shares on the date hereof to
his wife, Nancy W. Silvers. In connection therewith, the Company has agreed to
grant to Nancy W. Silvers, with respect to all of the 614,600 shares of Common
Stock owned by her after giving effect to such transfer, and to The Silvers
Family Trust, which owns 200,000 shares of the Common Stock of the Company,
certain registration rights on the terms set forth herein.
Accordingly, the Company covenants and agrees with the Stockholders as
follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Act" shall mean the Securities Act of 1933, as amended, or any similar
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federal statute, and the rules and regulations of the SEC thereunder, all as the
same shall be in effect at the time.
"Agreement" shall mean this Registration Rights Agreement, as amended and
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in effect from time to time.
"Common Stock" shall mean the voting common stock of the Company, $.10 par
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value per share, and in addition, any capital stock or other securities into
which or for which Common Stock shall have been converted or exchanged pursuant
to any recapitalization, reorganization or merger of the Company.
"Equity Securities" shall mean any capital stock (including the Common
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Stock) of the Company, whether now authorized or not, and rights, option,
warrants or rights to purchase capital stock, and securities of any type
whatsoever that are, or may become, convertible into capital stock; the number
of shares of any Equity Security which is an option, warrant or right to
purchase capital stock or which is convertible into capital stock shall be the
number of shares of capital stock into which such option, warrant or right is
exercisable or convertible, without regard to when such option, warrant or right
may in fact be exercised or such convertible security may in fact be converted.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended, or
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any similar federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time.
"SEC" shall mean the Securities and Exchange Commission, or any other
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federal agency at the time administering the Act.
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"Shares" shall mean (a) the 200,000 shares of Common Stock owned by The
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Silvers Family Trust and the 614,600 shares of Common Stock owned by Nancy W.
Silvers as of the date hereof, (b) any capital stock or other securities into
which or for which such Common Stock shall have been converted or exchanged
pursuant to any recapitalization, reorganization or merger of the Company, and
(c) any shares of capital stock issued with respect to the foregoing pursuant to
a stock split or stock dividend; provided that no Shares which have been sold
pursuant to a public offering shall be considered to be outstanding Common
Shares hereunder.
2. Demand Registration Rights. If at any time after the date hereof the
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Company shall receive from any Stockholder a written request that the Company
effect a registration with respect to all or a part of the Shares, the Company
will use its diligent best efforts to effect such registration as soon as
practicable (including, without limitation, the execution of an undertaking to
file post-effective amendments, appropriate qualification under applicable blue
sky or other state securities laws and appropriate compliance with applicable
regulations issued under the Act) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Shares as
are specified in such request, provided that the Company shall not be obligated
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to effect, or take any action to effect, such registration pursuant to this
Section 2 after the Company has effected three (3) such registrations pursuant
to this Section 2 and such registrations have been declared or ordered
effective.
The registration statements filed pursuant to the request of any
Stockholder, subject to the provisions of Section 8(a) below, may include other
securities of the Company which are held by officers or directors of the Company
or which are held by parties who, by virtue of agreements with the Company, are
entitled to include their securities in any such registration.
The Company shall file a registration statement covering the Shares so
requested to be registered as soon as practicable after receipt of the request
of any Stockholder.
3. "Piggyback" Registration Rights. Whenever the Company proposes to
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register any of its Common Stock under the Act for a public offering for cash,
whether as a primary or secondary offering (or pursuant to registration rights
granted to holders of other securities of the Company), other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a SEC Rule 145 transaction, the Company shall, each such
time, give the Stockholders written notice of its intent to do so. Upon any
Stockholder's written request given within 15 days after the giving of any such
notice, the Company shall use its best efforts to cause to be included in such
registration all of the Shares held by such Stockholder, to the extent requested
to be registered; provided (i) at least ten percent (10%) of the Shares held by
such Stockholder are included in requests which are given within 15 days of such
notice by such Stockholder pursuant to this Agreement, and (ii) such Stockholder
agrees to sell Shares in the same manner and on the same terms and conditions as
the other Common Stock which the Company proposes to register. If the
registration of which the Company gives notice is for a registered public
offering involving an underwriting, the Company shall so advise the Stockholders
as a part of the written notice given pursuant to this Section 3. In such event,
the right of the Stockholders to registration pursuant to this Section 3 shall
be conditioned upon the
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Stockholders' participation in such underwriting and the inclusion of the
Stockholders' Shares in the underwriting to the extent provided herein. In such
event, the selling Stockholders shall (together with the Company, directors and
officers and the other shareholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form and
reasonably acceptable to the selling Stockholders in form and content with the
underwriter or underwriters selected for underwriting by the Company and
reasonably acceptable to the selling Stockholders.
4. Obligations of the Company. Whenever required under Sections 2 or 3
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to use its best efforts to effect the registration of any of the Shares held by
the Stockholders, the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Shares and use its best efforts to cause
such registration statement to become and remain effective until the
Stockholders have completed the distribution of the Shares described in
such registration statements; provided, however, that the Company shall
in no event be obligated to cause any such registration to remain
effective for more than 90 days;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Act with respect to the disposition of all securities covered by
such registration statement;
(c) Furnish to the Stockholders such numbers of
copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Act, and such other documents
as it may reasonably request in order to facilitate the disposition of
such Shares; and
(d) Use its best efforts to register and qualify the
Shares covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably appropriate in the opinion of the Stockholders and the
managing underwriters for the distribution of the Shares covered by the
registration statement, provided that (anything herein to the contrary
notwithstanding with respect to the bearing of expenses) if any
jurisdiction in which the Shares shall be qualified shall require that
expenses incurred in connection with the qualification therein of the
Shares be borne by selling shareholders, then such expenses shall be
payable by selling shareholders pro rata, to the extent required by
such jurisdiction, and provided further that the Company shall not be
obligated to register or qualify such Shares in any particular
jurisdiction in which the Company would be required to execute a
general consent to service of process in order to effect such
registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction.
5. Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action required under Sections 2, 3 and 4
that the selling Stockholders shall furnish to the Company such information
regarding it, the Shares held by it and the intended method of disposition
thereof as the Company shall reasonably request and as shall be required in
connection with the action to be taken by the Company.
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6. Expenses of Registration. Up to $20,000 in the aggregate of the
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expenses incurred in connection with the registrations pursuant to this
Agreement (excluding underwriting commissions allocable to the selling
Stockholders' Shares and discounts and counsel fees of the Stockholders, which
shall be borne by the selling Stockholders), including without limitation all
registration and qualification fees, printing, and fees and disbursements of
counsel for the Company, shall be borne by the Company; provided, however, that
the Company shall not be required to pay for Blue Sky registration or
qualification expenses in connection with states in which the Company is not
registering or qualifying its original issue shares or the shares of a
shareholder exercising demand registration rights.
7. Underwriting Requirements; Reduction of Shares to be Included in a
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Registration.
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(a) If shareholders other than the Stockholders shall
request inclusion of securities of the Company in any registration
initiated by the Stockholders, the Stockholders shall, on behalf of all
shareholders, offer to include the securities of such other
shareholders in the registration and may condition such offer on their
acceptance of all applicable provisions of this Section. If such
registration is to be underwritten, then the Company shall (together
with all shareholders proposing to distribute their securities through
such underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters
selected for such underwriting by the Stockholders and reasonably
acceptable to the Company.
Notwithstanding any other provision of this Section,
if the representative of the underwriter or underwriters advises the
Stockholders in writing that marketing factors make it advisable to
impose a limitation on the number of shares to be underwritten, the
securities of the Company held by other shareholders shall be excluded
from such registration to the extent so required by such limitation and
if a limitation of the number of shares is still required, the number
of the Stockholders' Shares that may be included in the registration
and underwriting shall be reduced accordingly. No securities excluded
from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration.
If the underwriter has not limited the number of
securities to be underwritten, the Company may include its securities
for its own account in such registration if the underwriter so agrees
and if the number of securities which would otherwise have been
included in such registration and underwriting will not thereby be
limited.
(b) Notwithstanding any other provision herein, if
the representative of the underwriter or underwriters advises the
Company in writing that marketing factors make it advisable to impose a
limitation on the number of shares of Common Stock to be underwritten
in connection with any "piggyback" registration pursuant to Section 3,
the Company shall so advise the Stockholders and all other holders of
Common Stock whose securities would otherwise be
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underwritten in such underwriting, and the number of shares of Common
Stock that may be included in the registration and underwriting shall
be allocated first, to the Company, and next, among the Stockholders
and all such other holders in proportion, as nearly as practicable, to
the respective amounts of shares of Common Stock held by the
Stockholder and such persons at the time of filing the registration
statement. No shares of Common Stock or any other securities excluded
from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration.
8. Indemnification. In the event any of the Shares held by any
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Stockholder are included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless such Stockholder, its trustees, officers, directors,
employees and agents, any underwriter (as defined in the Act) for
them, and each person, if any, who controls them or such underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which they may become subject under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue or alleged untrue statement of any material fact
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not
misleading; and will reimburse such Stockholder, its trustees,
officers, directors, employees and agents, such underwriter or
controlling person for any legal or other expenses reasonably incurred
by it in connection with investigating or defending any such loss,
claim, damage, liability or action if it is judicially determined that
there were material misstatements or omissions; provided, however,
that the indemnity agreement contained in this Section shall not apply
to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any such loss,
damage, liability or action to the extent that it arises out of or is
based upon an untrue statement or alleged untrue statement or omission
made in connection with such registration statement, preliminary
prospectus, final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by the
Stockholder or controlling person with respect to it.
(b) To the extent permitted by law, the selling Stockholders will
indemnify and hold harmless the Company, each of its directors, each
of its officers who have signed such registration statement, each
person, if any, who controls the Company within the meaning of the
Act, any underwriter for the Company (within the meaning of the Act)
and each other shareholder of the Company whose securities are
included in such registration statement against any losses, claims,
damages or liabilities to which the Company or any such director,
officer, controlling person, underwriter or shareholder may become
subject, under the Act or otherwise, insofar
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as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue statement of any
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or arise out of or are based upon
the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent that such untrue statement or omission was
made in such registration statement, preliminary prospectus, final
prospectus, or amendments or supplements thereto, in reliance upon and
in conformity with written information furnished by such Stockholders
expressly for use in connection with such registration; and such
Stockholders will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling
person, underwriter or shareholder in connection with investigating or
defending any such loss, claim, damage, liability or action if it is
judicially determined that there were material misstatements or
omissions; provided, however, that the indemnity agreement contained
in this Section shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the Stockholders' consent (which consent shall not be
unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section, notify the indemnifying party
in writing of the commencement thereof and the indemnifying party
shall have the right to participate in, and to the extent the
indemnifying party desires, jointly with any other indemnifying party
similarly noticed, to assume at its expense the defense thereof with
counsel mutually satisfactory to the parties. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial to his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under
this Section, but the omission so to notify the indemnifying party
will not relieve him of any liability which he may have to any
indemnified party otherwise other than under this Section.
9. Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Stockholders the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at any
time permit the Stockholders to sell securities of the Company to the
public without registration, the Company agrees to use its best efforts:
(i) to make and keep public information available, as those terms are
understood and defined in Rule 144, at all times, (ii) to file with the SEC
in a timely manner all reports and other documents required to be filed by
an issuer of securities registered under the Act or the 1934 Act (at any
time after the Company becomes subject to such requirements), and (iii) as
long as the Stockholders hold any of the Shares, to furnish in writing upon
any Stockholder's request a written statement by the Company that it has
complied with the reporting requirements of Rule 144 and of the Act and the
1934 Act, and to furnish to the Stockholders a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed by the Company as may be reasonably requested in
availing the Stockholders of any rule or regulation of the SEC permitting
the selling of any such securities without registration.
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10. Lockup Agreement. In consideration for the Company agreeing to its
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obligations under this Agreement, the Stockholders agree in connection with any
registration of the Company's securities, upon the reasonable request of the
Company or the underwriters managing any underwritten offering of the Company's
securities, not to sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any Shares or other securities of the
Company (other than those included in the registration) without the prior
written consent of the Company or such underwriters, as the case may be, for
such period of time not to exceed the later of (i) one hundred and eighty (180)
days from the filing date and (ii) ninety (90) days from the effective date of
the registration statement, as the Company or the underwriters may specify.
11. Representations and Warranties of the Company. The Company represents
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and warrants to the Stockholders that this Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms.
12. Miscellaneous.
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(a) All covenants and agreements contained 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 (including
without limitation transferees of any Shares subject hereto or any portion
thereof), whether so expressed or not; provided, however, that no
Stockholder (or its transferees) may transfer its rights under this
Agreement except to a transferee of at least 10% of the Shares and only if
such transferee becomes a party to this Agreement (including, without
limitation, for purposes of agreeing to comply with the agreements of the
Stockholders set forth herein). Any action or decision provided herein to
be taken or made by the Stockholders hereunder that is required to be taken
by the Stockholders collectively rather than individually shall be taken or
made by the holders of at least 51% of the total number of then outstanding
Equity Securities.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be delivered by hand, sent by Federal Express
or other recognized overnight delivery service, or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed as
follows:
if to the Company or the Stockholder, at the address of such party set
forth on the signature page hereof;
if to any subsequent holder of Shares subject hereto, to it at such
address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of Shares
subject hereto) or to the holders of such Shares (in the case of the
Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Connecticut (without regard to its conflict
of laws or choice of laws principles).
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(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the party against whom
enforcement of such an amendment, modification or waiver is sought.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(f) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability
shall attach only to such provision and shall not in any manner affect or
render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
[Signature Follow on Next Page]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
FIRST INTERNATIONAL BANCORP, INC.
By: /s/ Leslie A. Galbraith
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Its Executive Vice President
THE SILVERS FAMILY TRUST
By /s/ Bruce C. Silvers
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BRUCE C. SILVERS, ITS TRUSTEE
/s/ Nancy W. Silvers
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NANCY W. SILVERS