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EXHIBIT 10.10
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT dated August 6, 1996 (this "Agreement"), is
entered into by and between UNIONBANCORP, INC., a Delaware corporation
("Union"), WAYNE W. WHALEN and DENNIS J. MCDONNELL (collectively, the
"Stockholders," and individually, a "Stockholder").
RECITALS
A. Union and Prairie Bancorp, Inc., an Illinois corporation ("Prairie"),
are parties to that certain Agreement and Plan of Merger dated January 22, 1996
(the "Merger Agreement"), providing for the merger (the "Merger") of Prairie
with and into a wholly-owned subsidiary of Union.
B. As a result of the Merger, Union will issue to the Stockholders shares
of Union's common stock $1.00 par value (the "Common Stock") and shares of
Union's Series A Preferred Stock which is convertible into shares of Union
Common Stock (the "Preferred Stock").
C. As a condition to the Merger, Union is required to deliver this
Agreement to the Stockholders at the Closing (as defined in the Merger
Agreement).
D. The obligation of Prairie under the Merger Agreement to consummate the
transactions contemplated therein is subject to the receipt by the Stockholders
from Union of a registration agreement in the form of this Agreement, and Union
is executing this Agreement for the purpose of inducing Prairie to consummate
the transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements of the
parties herein contained, the sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENTS
1. DEFINITIONS. As used in this Agreement:
(A) "COMMISSION" means the Securities and Exchange Commission.
(B) "COMMON STOCK" means the common stock of Union, $1.00 par value.
(C) "PERSON" means a natural person, a partnership, a corporation, an
association, a joint stock company, a trust, an estate, a joint venture, an
unincorporated organization or a governmental entity or any department, agency
or political subdivision thereof.
(D) "REGISTRABLE SHARES" means at any time: (i) any shares of Common
Stock then outstanding which were issued to the Stockholders pursuant to the
provisions of the Merger Agreement; (ii) any shares of Common Stock then
outstanding which were issued upon conversion of Preferred Stock; (iii) any
shares of Common Stock then issuable upon conversion of then outstanding
Preferred Stock; (iv) any shares of Common Stock then outstanding which were
issued as, or were issued directly or indirectly upon the conversion or
exercise of other securities issued as, a dividend or other distribution with
respect to or in replacement of other Registrable Shares; and (v) any shares of
Common Stock then issuable directly or indirectly upon the conversion or
exercise of other securities which were issued as a dividend or other
distribution with respect to or in replacement of other Registrable Shares;
provided, that Registrable Shares shall not include any shares the sale of
which has been registered pursuant to the Securities Act or which have been
sold to the public pursuant to Rule 144 of the Commission under the Securities
Act. For purposes of this Agreement, a Person will be deemed to be a holder of
Registrable Shares whenever such Person has the then-existing right to acquire
such Registrable Shares (by conversion or otherwise), whether or not such
acquisition has actually been effected.
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(E) "REGISTRATION EXPENSES" has the meaning ascribed to it in Section
6 of this Agreement.
(F) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(G) "SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
2. PIGGYBACK REGISTRATIONS.
(A) RIGHT TO PIGGYBACK. Whenever Union proposes to register any of its
securities under the Securities Act and the registration form to be used may be
used for the registration of Registrable Shares (a "Piggyback Registration"),
Union will give prompt written notice to all holders of Registrable Shares of
its intention to effect such a registration and will include in such
registration all Registrable Shares with respect to which Union has received
written requests for inclusion therein within 15 days after the receipt of
Union's notice.
(B) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is
an underwritten primary registration on behalf of Union, and the
managing underwriters advise Union in writing (with a copy of such advice to be
supplied by Union to the holders of Registrable Shares) 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, Union will include in such
registration: (i) first, the securities Union proposes to sell; (ii) second,
the Registrable Shares requested to be included in such registration which in
such opinion of such underwriters can be sold, pro rata among the holders of
such Registrable Shares on the basis of the number of Registrable Shares owned
by such holders, with further successive pro rata allocations among the holders
of Registrable Shares if any such holder of Registrable Shares has requested
the registration of less than all such Registrable Shares it is entitled to
register; and (iii) third, other securities requested to be included in such
registration.
(C) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of Union's
securities, and the managing underwriters advise Union in writing (with a copy
of such advice to be supplied by Union to the holders of Registrable Shares)
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, Union will
include in such registration: (i) first, the securities requested to be
included therein by the holders requesting such registration, (ii) second, the
Registrable Shares requested to be included in such registration which
in such opinion of such underwriters can be sold, pro rata among the holders of
such Registrable Shares on the basis of the number of Registrable Shares owned
or deemed to be owned by such holders, with further successive pro rata
allocations among the holders of Registrable Shares if any such holder of
Registrable Shares has requested the registration of less than all such
Registrable Shares it is entitled to register; and (iii) third, other
securities requested to be included in such registration.
(D) OTHER REGISTRATIONS. If Union has previously filed a registration
statement with respect to Registrable Shares pursuant to this paragraph 2, and
if such previous registration has not been withdrawn or abandoned, Union will
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-4 or 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 6 months has elapsed
from the effective date of such previous registration.
3. HOLDBACK AGREEMENTS.
(A) Each of the holders of Registrable Shares agrees not to effect any
public sale or distribution of equity securities of Union, 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
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Piggyback Registration (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(B) Union agrees: (i) not to 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 Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-4, Form S-8 or any successor form), unless the
underwriters managing the registered public offering otherwise agree; and (ii)
to use its best efforts to cause each holder of at least 5% (on a fully-diluted
basis) of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, purchased from Union 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 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 Shares
have requested that any Registrable Shares be registered in a Piggyback
Registration pursuant to this Agreement, Union will use its best efforts to
effect the registration and the sale of such Registrable Shares in accordance
with the intended method of disposition thereof, and pursuant thereto Union
will as expeditiously as possible:
(A) prepare and file with the Commission a registration statement with
respect to such Registrable Shares and use its best efforts to cause such
registration statement to become and remain effective for such period as may be
reasonably necessary to effect the sale of such securities, not to exceed nine
months;
(B) prepare and file with the 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 Shares and the underwriters of
the securities being registered such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus) or
filed under Rule 424 promulgated under the Securities Act and each amendment or
supplement thereto and such other documents as such seller or underwriters may
reasonably request to facilitate the disposition of the Registrable Shares
owned by such seller or the sale of such securities by such underwriters;
(D) use its best efforts to register or qualify such Registrable Shares
under such other securities or blue sky laws of such jurisdictions as any
seller or underwriter of the sale of the Registrable Shares 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 Shares owned by such seller (provided,
however, that Union will not be required to: (i) qualify generally 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);
(E) cause all such Registrable Shares to be listed on each securities
exchange on which similar securities issued by Union are then listed;
(F) provide a transfer agent and registrar for all such Registrable
Shares not later than the effective date of such registration statement;
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(G) 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 Registrable Shares being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Shares (including, without limitation, effecting a stock split or a
combination of shares);
(H) make available for inspection by each seller of Registrable Shares,
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 Union, and cause Union'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;
(I) notify each seller of such Registrable Shares, promptly after it
shall receive notice thereof, of the time when such registration
statement has become effective or a supplement to any prospectus forming a part
of such registration statement has been filed;
(J) notify each seller of such Registrable Shares of any request by the
Commission for the amending or supplementing of such registration statement or
prospectus or for additional information;
(K) prepare and file with the Commission, promptly upon the request of
any seller of such Registrable Shares, any amendments or supplements to
such registration statement or prospectus which, in the opinion of counsel
selected by the holders of a majority of the Registrable Shares being
registered, is required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of Registrable Shares by such
seller;
(L) prepare and promptly file with the Commission and promptly notify
each seller of such Registrable Shares of the occurrence of an event
requiring the filing, and of the actual filing, of such amendment or supplement
to such registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event
shall have 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 necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading;
(M) advise each seller of such Registrable Shares, promptly after it
shall receive notice or obtain 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
such purpose and promptly use all reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such stop order should be issued;
(N) at least 48 hours prior to the filing of any registration
statement or prospectus or any amendment or supplement to such
registration statement or prospectus, furnish a copy thereof to each seller of
such Registrable Shares and refrain from filing any such registration
statement, prospectus, amendment or supplement to which counsel selected by the
holders of a majority of the Registrable Shares being registered shall have
reasonably objected on the grounds that such amendment or supplement does not
comply in all material respects with the requirements of the Securities Act or
the rules and regulations thereunder, unless, in the case of an amendment or
supplement, in the opinion of counsel for Union, the filing of such amendment
or supplement is reasonably necessary to protect Union from any liabilities
under any applicable federal or state law and such filing will not violate
applicable laws; and
(O) at the request of any seller of such Registrable Shares in
connection with an underwritten offering, furnish on the date or dates
provided for in the underwriting agreement: (i) an opinion of counsel,
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addressed to the underwriters and the sellers of Registrable Shares, covering
such matters as such underwriters and sellers may reasonably request,
including, without limiting the generality of the foregoing, opinions to the
effect that: (A) such registration statement has become effective under the
Securities Act; (B) to the best of such counsel's knowledge, no stop order
suspending the effectiveness thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under the
Securities Act; (C) the registration statement, the prospectus and each
amendment or supplement thereto comply as to form in all material respects with
the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder (except that such counsel need express no opinion
as to financial statements or other financial or statistical data contained
therein); (D) while such counsel has not verified the accuracy, completeness or
fairness of the statements contained in any registration statement or
prospectus, as either may be amended or supplemented, such counsel has no
reason to believe that the registration statement, the prospectus or any
amendment or supplement thereto contains any 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 (except that such
counsel need express no opinion as to financial statements or other financial
or statistical data contained therein); (E) the descriptions in the
registration statement, the prospectus or any amendment or supplement thereto
of all legal and governmental proceedings and all contracts and other legal
documents or instruments are accurate in all material respects; and (F) while
such counsel has not verified the accuracy, completeness or fairness of the
statements contained in any registration statement or prospectus, as either may
be amended or supplemented, such counsel does not know of any legal or
governmental proceedings, pending or threatened, required to be described in
the registration statement, the prospectus or any amendment or supplement
thereto which are not described as required nor of any contracts or documents
or instruments of the character required to be described in the registration
statement, the prospectus or any amendment or supplement thereto or to be filed
as described or filed as required; and (ii) a letter or letters from the
independent certified public accountants of Union addressed to the underwriters
and the sellers of Registrable Shares, covering such matters as such
underwriters and sellers may reasonably request, in which letters such
accountants shall state, without limiting the generality of the foregoing, that
they are independent certified public accountants within the meaning of the
Securities Act and that in the opinion of such accountants the financial
statements and other financial data of Union included in the registration
statement, the prospectus or any amendment or supplement thereto comply in all
material respects with the applicable accounting requirements of the Securities
Act.
5. REGISTRATION EXPENSES. All expenses incident to Union'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, and fees and disbursements of counsel for Union and its independent
certified public accountants, underwriters (excluding discounts and commissions
attributable to the Registrable Shares included in such registration) and other
Persons retained by Union (all such expenses being herein called "Registration
Expenses"), will be borne by Union. In addition, Union will 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
obtained by Union and the expenses and fees for listing the securities to be
registered on each securities exchange on which any shares of common stock are
then listed. Notwithstanding anything contained herein to the contrary,
however, the holders of Registrable Shares covered by such registration shall
be responsible for the expenses and fees of counsel, if any, representing
holders of such Registrable Shares.
6. INDEMNIFICATION.
(A) Union agrees to indemnify, to the fullest extent permitted by law,
each seller of Registrable Shares, its officers, directors, agents, employees
and representatives and each Person who controls such seller (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities
and expenses (including, without limitation, attorneys' fees except as limited
by paragraph 7(c)) caused by any untrue or alleged untrue statement of a
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
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by or contained in any information furnished in writing to Union by
such seller expressly for use therein or by such seller's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after Union has furnished such seller with a sufficient
number of copies of the same. In connection with an underwritten offering,
Union will indemnify such underwriters, their officers, directors, agents,
employees and representatives 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 sellers of Registrable Shares. The
reimbursements required by this paragraph 7(a) will be made by periodic
payments during the course of the investigation or defense, as and when bills
are received or expenses incurred.
(B) In connection with any registration statement in which a seller of
Registrable Shares is participating, each such seller will furnish to Union in
writing such information and affidavits as Union reasonably requests with
respect to such holder of Registrable Shares for use in connection with any
such registration statement or prospectus and, to the fullest extent permitted
by law, will indemnify Union, its directors and officers and each Person who
controls Union (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses (including, without limitation,
attorneys' fees except as limited by paragraph 7(c)) resulting from any untrue
statement of a material fact contained in the registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or any 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 seller; provided that the obligation
to indemnify will be several, not joint and several, among such sellers of
Registrable Shares, and the liability of each such seller of Registrable Shares
will be in proportion to, and provided further that such liability will be
limited to, the net amount received by such seller from the sale of Registrable
Shares pursuant to such registration statement.
(C) Any Person entitled to indemnification hereunder will: (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification; and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not
be unreasonably withheld). No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof, the granting by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation. An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will 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, 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 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 securities. Union
also agrees to make such provisions as are reasonably requested by any
indemnified party for contribution to such party in the event Union's
indemnification is unavailable for any reason.
7. COMPLIANCE WITH RULE 144. At the request of any holder of Registrable
Shares who proposes to sell securities in compliance with Rule 144 of the
Commission, Union will: (i) forthwith furnish to such holder a written
statement of compliance with the filing requirements of the Commission as set
forth in Rule 144 as such rule may be amended from time to time; and (ii) make
available to the public and such holders such information as will enable the
holders to make sales pursuant to Rule 144.
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8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may participate
in any registration hereunder which is underwritten unless such Person: (a)
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 (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
The holders of a majority of the Registrable Shares requested to be registered
will have the right to select the managing underwriters to administer any
offering of Union's securities in which Union does not participate, and Union
will have such right in any offering in which it participates, provided that in
either case such managing underwriters shall be qualified, nationally
recognized underwriters.
9. NO INCONSISTENT AGREEMENTS. Union will not hereafter enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the holders of Registrable Shares in this Agreement.
10. ADJUSTMENTS AFFECTING REGISTRABLE SHARES. Union will not take any
action, or permit any change to occur, with respect to its securities which
would adversely affect the ability of the holders of Registrable Shares to
include such Registrable Shares in a registration undertaken pursuant to this
Agreement or which would adversely affect the marketability of such Registrable
Shares in any such registration (including, without limitation, effecting a
stock split or a combination of shares).
11. REMEDIES. Any Person having rights under any provision of this
Agreement will 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.
12. AMENDMENTS AND WAIVERS. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended or waived at any time
only by the written agreement of Union and the holders of a majority of the
Registrable Shares. Any waiver, permit, consent or approval of any kind or
character on the part of any such holders of any provision or condition of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in writing.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure solely to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns, but shall not be assigned
by the parties hereto, by operation of law or otherwise, without the prior
written consent of the other party. Nothing in this Agreement, expressed or
implied, is intended to confer upon any other person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
14. OTHER REGISTRATION RIGHTS. Except for the registration rights granted
hereunder, Union will not grant to any Persons the right to request Union to
register any equity securities of Union, or any securities convertible or
exchangeable into or exercisable for such securities, without the written
consent of the holders of at least a majority of the Registrable Shares.
15. FINAL AGREEMENT. This Agreement constitutes the final agreement of
the parties concerning the matters referred to herein, and supersedes all prior
agreements and understandings.
16. SEVERABILITY. Whenever possible, each provision of this Agreement
will 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 will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
17. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience of reference only and do not constitute a part of and
shall not be utilized in interpreting this Agreement.
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18. NOTICES. All notices, requests and other communications hereunder
shall be in writing (which shall include telecopier communication) and shall be
deemed to have been duly given if delivered by hand or by overnight express
delivery service, mailed with first class postage prepaid or telecopied if
confirmed immediately thereafter by also mailing a copy of any notice, request
or other communication by mail with first class postage prepaid:
(A) If to Union, to:
UnionBancorp, Inc. Barack, Ferrazzano, Kirschbaum & Perlman
122 West Madison Street 333 West Wacker Drive, Suite 2700
Ottawa, Illinois 61350 and Suite 2700
Attention: R. Scott Grigsby Chicago, Illinois 60606
Chairman and President Attention: John E. Freechack, Esq.
Telephone: (815) 673-3333 Telephone: (312) 984-3223
Telecopier: (815) 434-3160 Telecopier: (312) 984-3150
(B) If to the holders of Registrable Shares, to the addresses set forth on
the stock record books of Union.
19. GOVERNING LAW. The validity, meaning and effect of this Agreement
shall be determined in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in that state.
20. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute one instrument. Each
party shall receive a duplicate original of the counterpart copy or copies
executed by it and Union.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ATTEST: UNIONBANCORP, INC.
By:\s\ Charles J. Grako By:\s\ R. Scott Grigsby
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Charles J. Grako R. Scott Grigsby
Secretary/Treasurer Chairman of the Board and President
STOCKHOLDERS:
\s\ Wayne H. Whalen \s\ Dennis J. McDonnell
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WAYNE W. WHALEN DENNIS J. MCDONNELL
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