Exhibit 4.1 EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as
of September 29, 2004 by and between Pennsylvania Commerce Bancorp, Inc., a
Pennsylvania corporation (the "Company"), and Commerce Bancorp, Inc., a New
Jersey corporation (the "Purchaser").
RECITALS
WHEREAS, the Company and the Purchaser entered into the Stock
Purchase Agreement, dated as of the date hereof (the "Purchase Agreement"),
pursuant to which the Purchaser acquired One Hundred Thousand (100,000) shares
of the Company's Common Stock;
WHEREAS, as an inducement and a condition to consummating the
Purchase Agreement, the Purchaser has required that the Company agree, and the
Company has agreed, to enter into this Agreement; and
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants, representations, warranties and agreements herein contained,
the parties hereto agree as follows:
ARTICLE I
GENERAL
Section 1.01. DEFINITIONS. As used in this Agreement the following
terms shall have the following respective meanings:
(a) "Closing Date" shall mean the Closing Date specified in
the Purchase Agreement.
(b) "Common Stock" shall mean the Common Stock, par value
$1.00 per share, of the Company.
(c) "Exchange Act" shall mean the Securities Exchange Act of
1934, or any successor thereto, as the same shall be amended from time to time.
(d) "Holder" shall mean the Purchaser and each of its
successors and assigns who acquire Registrable Securities, directly or
indirectly, from the Purchaser or from any successor or assign of any such party
and to whom the registration rights conferred by this Agreement have been
transferred in compliance with Section 2.09 hereof.
(e) The term "person" shall mean a corporation, association,
partnership, limited liability company, organization, business, individual,
government or political subdivision thereof or governmental agency.
(f) "Registrable Securities" shall mean (i) the Shares and
(ii) any Common Stock of the Company issued as (or issuable upon the conversion
or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of, the Shares; provided, however, that such shares of Common Stock
shall cease to be Registrable Securities when (i) a registration statement
registering such shares of Common Stock under the Securities Act has been
declared effective and such shares of Common Stock have been sold or otherwise
transferred by the Holder thereof pursuant to such effective registration
statement, (ii) such shares of Common Stock are sold pursuant to Rule 144 (or
any successor provision) promulgated under the Securities Act under
circumstances in which any legend borne by such shares of Common Stock relating
to restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or (iii) such shares of Common Stock are
sold in a private transaction in which the transferor's rights under Article II
of this Agreement are not assigned.
(g) Register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(h) "Registrable Securities then outstanding" shall be the
number of shares determined by calculating the total number of shares of the
Company's Common Stock that are Registrable Securities and either (a) are then
issued and outstanding or (b) are issuable pursuant to then exercisable or
convertible securities.
(i) "Registration Expenses" shall mean all expenses incurred
by the Company in complying with Sections 2.01 and 2.02 hereof, 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, fees and disbursements
of counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions), reasonable fees and
disbursements of a single special counsel for the Holders, and the expense of
any special audits incident to or required by any such registration. In any
event, the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(j) "Rule 144" shall mean Rule 144 promulgated by the SEC
pursuant to the Securities Act.
(k) "`SEC" or "Commission" means the Securities and Exchange
Commission.
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(l) "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of Registrable Securities
pursuant to this Agreement.
(m) "Securities Act" shall mean the Securities Act of 1933, or
any successor thereto, as the same shall be amended from time to time.
(n) "Shares" shall mean the Common Stock purchased by
Purchaser pursuant to the Purchase Agreement.
All capitalized terms used in this Agreement without definition shall
have the meaning given to such terms in the Purchase Agreement.
ARTICLE II
REGISTRATION
Section 2.01. DEMAND REGISTRATION.
(a) Subject to the conditions of this Section 2.01, at any
time from and after the date six (6) months after the Closing Date, if the
Company shall receive a written request from the Holders of a majority of the
Registrable Securities (the "Initiating Holders") that the Company file a
registration statement under the Securities Act covering the registration of the
Registrable Securities (a "Demand Registration"), then the Company shall, within
fifteen (15) days of the receipt thereof, give written notice of such request to
all Holders, and subject to the limitations of this Section 2.01, use its best
efforts to effect, as soon as practicable, the registration under the Securities
Act of all Registrable Securities for which the Company has received written
requests for inclusion therein within fifteen (15) days after receipt by the
Holders of such Company notice.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2.01 and the Company shall include such information in the written
notice referred to in Section 2.01(a). In the event of an underwritten offering,
the right of any Holder to include its Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting by a majority in interest of the Initiating Holders (which
underwriter or underwriters shall be reasonably acceptable to the Company).
Notwithstanding any other provision of this Section 2.01, if the underwriter
advises the Company that marketing factors require a limitation of the number of
securities to be underwritten then the Company shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
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and the number of shares that may be included in the underwriting shall be
allocated to the Holders of such Registrable Securities on a pro rata basis
based on the number of Registrable Securities held by all such Holders
(including the Initiating Holders). Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration
pursuant to this Section 2.01:
(i) after the Company has effected one (1) Demand
Registration pursuant to and in accordance with this Section 2.01, and such
registration has been declared or ordered effective and kept effective by the
Company as required by Section 2.05(b) of this Agreement, provided that if as a
result of the managing underwriter's advice, less than two thirds of the
Registrable Securities covered by the Registration request are included in the
registration at the effective date thereof, the request shall not be considered
a Demand Registration which has been effected for purposes of this Section
2.01(c)(i);
(ii) during the period starting with the date of filing
of, and ending on the date ninety (90) days following the effective date of, a
Company-initiated registration statement pertaining to a public offering;
provided that the Company makes reasonable good faith efforts to cause such
registration statement to become effective;
(iii) if within thirty (30) days of receipt of a written
request from Initiating Holders pursuant to Section 2.01(a), the Company gives
written notice to the Holders of the Company's intention to file a registration
statement with respect to a public offering within thirty (30) days; provided
that a delay pursuant to this Section 2.01(c)(iii), subject to Section
2.01(c)(ii), shall be no longer than ninety (90) days; or
(iv) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 2.01 a certificate signed by the
Chairman of the Board stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its shareholders for such registration statement to be effected at such time
because such registration would require premature public disclosure with respect
to pending confidential matters, in which event the Company shall have the right
to defer such filing for a period of not more than ninety (90) days after
receipt of the request of the Initiating Holders; provided that such right to
delay a request shall be exercised by the Company not more than once in any
twelve (12)-month period.
(d) The Company 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 the ninety (90)-day period beginning on the effective date of the
Registration Statement for a Demand Registration, unless the underwriters
managing such offering otherwise agree, and (ii) to cause each holder 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.
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(e) In the event of any registration of Registrable Securities
pursuant to Section 2.01 hereof, the Company shall not, without the express
written consent of the Initiating Holders owning a majority of such Registrable
Securities, cause or permit any other securities of the Company or of any other
person (whether such securities are to be issued by the Company, are held in the
Company's treasury or are then outstanding and held by other persons) to be
covered by such registration statement or otherwise to be included in such
registration.
Section 2.02. PIGGYBACK REGISTRATIONS. The Company shall notify all
Holders of Registrable Securities in writing at least fifteen (15) days prior to
the filing of any registration statement under the Securities Act for purposes
of a public offering of securities of the Company (including, but not limited
to, registration statements relating to secondary offerings of securities of the
Company, but excluding the Company's registration statement on Form S-1 filed
with the SEC on August 13, 2004 (File No. 333-118236) and any amendments thereto
and registration statements relating to employee benefit plans or with respect
to corporate reorganizations or other transactions under Rule 145 of the
Securities Act) and shall afford each such Holder an opportunity to include in
such registration statement all or part of such Registrable Securities held by
such Holder. Each Holder desiring to include in any such registration statement
all or any part of the Registrable Securities held by it shall, within fifteen
(15) days after the above-described notice from the Company, so notify the
Company in writing. Such notice shall state the intended method of disposition
of the Registrable Securities by such Holder. If a Holder decides not to include
all of its Registrable Securities in any registration statement thereafter filed
by the Company, such Holder shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
(a) UNDERWRITING. If the registration statement under which
the Company gives notice under this Section 2.02 is for an underwritten
offering, the Company shall so advise the Holders of Registrable Securities. In
such event, the right of any such Holder to be included in a registration
pursuant to this Section 2.02 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by the Company;
provided, that no 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, such Holder's title to securities, and such Holder's intended
method of distribution) or to undertake any indemnification obligations to the
Company or the underwriters with respect thereto, except as otherwise provided
in Section 2.08 hereof. Notwithstanding any other provision of the Agreement, if
the underwriter determines in good faith that marketing factors require a
limitation of the number of shares to be underwritten, the number of shares that
may be included in the underwriting shall be allocated as follows: first to the
Company; second, to the Holders on a pro rata basis based on the total number of
Registrable Securities held by the Holders; and third, to any shareholder of the
Company (other than a Holder) on a pro rata basis. If any Holder disapproves of
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the terms of any such underwriting, such Holder may elect to withdraw therefrom
by written notice to the Company and the underwriter, delivered at least ten
(10) business days prior to the effective date of the registration statement.
Any Registrable Securities excluded or withdrawn from such underwriting shall be
excluded and withdrawn from the registration. For any Holder which is a
partnership or corporation, the partners, retired partners and shareholders of
such Holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing person shall be
deemed to be a single "Holder", and any pro rata reduction with respect to such
"Holder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"Holder," as defined in this sentence.
(b) RIGHT TO TERMINATE REGISTRATION. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 2.02 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Company in
accordance with Section 2.04 hereof.
Section 2.03. INTENTIONALLY OMITTED.
Section 2.04. EXPENSES OF REGISTRATION. Except as specifically provided
herein, all Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.01 or Section 2.02 herein
shall be borne by the Company. All Selling Expenses incurred in connection with
any registrations hereunder, shall be borne by the holders of the securities so
registered pro rata on the basis of the number of shares so registered.
Section 2.05. OBLIGATIONS OF THE COMPANY. Whenever required to effect
the registration of any Registrable Securities pursuant to this Agreement, the
Company shall use its best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
distribution thereof, and pursuant thereto, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use all reasonable efforts to
cause such registration statement to become effective (provided that before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company shall furnish to the counsel selected by the Holders of a
majority of the 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 SEC such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for up to one hundred eighty (180) days or, if
earlier, until the Holders have completed the distribution related thereto, and
comply with the provisions of the Securities Act with respect to the disposition
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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 the Holders such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus),
in conformity with the requirements of the Securities Act, and such other
documents as they may reasonably request in order to facilitate the disposition
of Registrable Securities owned by them.
(d) Use its reasonable best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(e) 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 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, a
combination of shares or other capitalization). Each Holder participating in
such underwriting shall also enter into and perform its obligations under such
an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement 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, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and, at the request of any Holder, 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 include
an untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing.
(g) Use its best efforts to furnish, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, (i) an opinion, dated as of such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and (ii)
a letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering addressed to the underwriters.
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(h) Use its best efforts to cause the Registrable Securities
to be listed on the Nasdaq Small Cap Market or such other securities exchange or
quotation system on which the Common Stock is then listed or quoted.
(i) Take all other reasonable actions necessary to expedite
and facilitate disposition of the Registrable Securities by the Holders thereof
pursuant to the Registration Statement.
(j) 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.
(k) Use its best efforts to comply with all applicable rules
and regulations of the SEC.
(l) Permit any Holder, which Holder, based upon the opinion of
such Holder's counsel, might be deemed to be an underwriter or a controlling
person of the Company, 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.
(m) 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 commercially reasonable efforts promptly
to obtain the withdrawal of such order.
(n) 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.
Section 2.06. TERMINATION OF REGISTRATION RIGHTS. A Holder's
registration rights hereunder shall expire if all Registrable Securities held by
and issuable to such Holder may be immediately sold under Rule 144.
Section 2.07. DELAY OF REGISTRATION; FURNISHING INFORMATION. It shall
be a condition precedent to the obligations of the Company to take any action
pursuant to Sections 2.01 or 2.02 that the selling Holders shall furnish to the
Company such information regarding themselves, the Registrable Securities held
by them and the intended method of disposition of such securities as shall be
required to effect the registration of their Registrable Securities.
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Section 2.08. INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under Sections 2.01 or 2.02:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners, officers and directors of each
Holder, any underwriter (as defined in the Securities Act) for such Holder and
each person, if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Exchange Act, against any losses, claims, damages,
or liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(collectively a "Violation") by the Company: (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendment or supplements thereto, (ii) 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, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law in connection with the offering
covered by such registration statement, and the Company will pay as incurred, to
each such Holder, partner, officer, director, underwriter or controlling person,
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided however, that the indemnity agreement contained in this Section 2.08(a)
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, claim, damage, liability or action
to the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder, partner, officer,
director, underwriter or controlling person of such Holder.
(b) To the extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration qualifications or compliance is being effected,
indemnify and hold harmless the Company, each of its directors, its officers and
each person, if any, who controls the Company within the meaning of the
Securities Act, any underwriter and any other Holder selling securities under
such registration statement or any of such other Holder's partners, directors or
officers or any person who controls such Holder, against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
controlling person, underwriter or other such Holder, or partner, director,
officer or controlling person of such other Holder may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
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written information furnished by such Holder under an instrument duly executed
by such Holder and stated to be specifically for use in connection with such
registration; and each such Holder will pay as incurred any legal or other
expenses reasonably incurred by the Company or any such director, officer,
controlling person, underwriter or other Holder, or partner, officer, director
or controlling person of such other Holder in connection with investigating or
defending any such loss, claim, damage, liability or action if it is judicially
determined that there was such a Violation; provided, however, that the
indemnity agreement contained in this Section 2.08(b) 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 Holder, which consent shall
not be unreasonably withheld; provided further, that the obligation to indemnify
shall be individual, not joint and several for each such Holder and that in no
event shall any indemnity under this Section 2.08 exceed the net proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.08 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.08, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction be liable for the fees and expenses of more
than one (1) separate counsel (in addition to one (1) local counsel in each
jurisdiction in which any proceeding may be brought) for all indemnified parties
hereunder. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, shall not
relieve such indemnifying party of any liability except to the extent that the
failure to provide such notice is materially prejudicial to the indemnifying
party, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.08.
(d) If the indemnification provided for in this Section 2.08
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
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other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, that in no event shall any contribution by a
Holder hereunder exceed the net proceeds from the offering received by such
Holder.
(e) The obligations of the Company and Holders under this
Section 2.08 shall survive completion of any offering of Registrable Securities
in a registration statement and the termination of this agreement. No
indemnifying party, in the defense of any such claim or litigation, shall,
except with the consent of each indemnified party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation.
Section 2.09. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Article II may
be assigned by a Holder to any transferee or assignee of Registrable Securities
unless such Registrable Securities have been sold to the public; provided,
however, (i) the transferor shall, within ten (10) days after such transfer,
furnish to the Company written notice of the name and address of such transferee
or assignee and the securities with respect to which such registration rights
are being assigned and (ii) such transferee shall agree to be subject to all
restrictions set forth in this Agreement.
Section 2.10. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this
Article II may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company, and Holders of a
majority of the Registrable Securities. Any amendment or waiver effected in
accordance with this Section 2.10 shall be binding upon each Holder and the
Company. By acceptance of any benefits under this Article II, each Holder of
Registrable Securities hereby agrees to be bound by the provisions hereunder.
Section 2.11. LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the
date of this Agreement, the Company shall not enter into any agreement with any
holder or prospective holder of any securities of' the Company that would grant
such holder registration rights senior or pari passu to those granted to the
Holders hereunder.
Section 2.12. RULE 144 REPORTING. With a view to making available to
the Holders the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(b) File with the SEC, in a timely manner, all reports and
other documents required of the Company under the Exchange Act; and
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(c) So long as a Holder owns any Registrable Securities,
furnish to such Holder forthwith upon request: a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144 of
the Securities Act, and of the Exchange Act (at any time after it has become
subject to such reporting requirements); a copy of the most recent annual or
quarterly report of the Company; and such other reports and documents as a
Holder may reasonably request in availing itself of any rule or regulation of
the SEC allowing it to sell any such securities without registration.
ARTICLE III
MISCELLANEOUS
Section 3.01. GOVERNING LAW. This Agreement, and matters arising out of
or relating to this Agreement, shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania without regard to the
conflict of laws provisions thereof.
Section 3.02. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns (to the extent permitted under Section
2.09), heirs, executors, and administrators of the parties hereto and shall
inure to the benefit of and be enforceable by each person who shall be a holder
of Registrable Securities from time to time; provided, however, that prior to
the receipt by the Company of adequate written notice of the transfer of any
Registrable Securities specifying the full name and address of the transferee,
the Company may deem and treat the person listed as the holder of such shares in
its records as the absolute owner and holder of such shares for all purposes,
including the payment of dividends or any redemption price.
Section 3.03. ENTIRE AGREEMENT. This Agreement and the Purchase
Agreement and the other documents delivered pursuant thereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and no party shall be liable or bound to any other in any manner
by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
Section 3.04. NOTICES. All notices, requests, claims, demands, waivers
and other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand, when delivered personally or by
courier, three days after being deposited in the mail (registered or certified
mail, postage prepaid, return receipt requested), or when received by facsimile
transmission if promptly confirmed by one of the foregoing means, as follows: if
to the Company, to it at 100 Senate Avenue, P.O. Box 8599, Camp Hill,
Pennsylvania 17001-8599; Telephone: (717) 975-5630; Facsimile: (717) 972-2876;
Attention: Gary L. Nalbandian, Chief Executive Officer, and if to a Holder, to
the address or facsimile transmission number of such Holder set forth in the
security register or other records of the Company, or to such other address or
facsimile transmission number as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
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Section 3.05. DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power, or remedy accruing to any Holder, upon any breach, default or
noncompliance of the Company under this Agreement shall impair any such right,
power, or remedy, nor shall it be construed to be a waiver of any such breach,
default or noncompliance, or any acquiescence therein, or of any similar breach,
default or noncompliance thereafter occurring. It is further agreed that any
waiver, permit, consent, or approval of any kind or character on any Holder's
part of any breach, default or noncompliance under the Agreement or any waiver
on such Holder's part of any provisions or conditions of this Agreement must be
in writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement, by law, or otherwise
afforded to Holders, shall be cumulative and not alternative.
Section 3.06. SEVERABILITY. In case any provision of this Agreement
shall be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 3.07. TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
Section 3.08. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument. Execution and delivery of this
Agreement by exchange of facsimile copies bearing the facsimile signature of a
party hereto shall constitute a valid and binding execution and delivery of this
Agreement by such party.
Section 3.09. JURISDICTION. The parties irrevocably consent to the
exclusive jurisdiction of the courts of the Commonwealth of Pennsylvania, County
of Philadelphia, or in the United States District Court for the Eastern District
of Pennsylvania, to the extent that such courts have jurisdiction.
Section 3.10. INTERPRETATION OF AGREEMENT. The parties hereto
acknowledge and agree that this Agreement has been negotiated at arm's-length
and among parties equally sophisticated and knowledgeable in the matters dealt
with in this Agreement. Accordingly, any rule of law or legal decision that
would require interpretation of any ambiguities in this Agreement against the
party that has drafted it is not applicable and is waived. The provisions of
this Agreement shall be interpreted in a reasonable manner to effect the intent
of the parties as set forth in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first written above.
PENNSYLVANIA COMMERCE BANCORP, INC.
By: /s/ Gary L. Nalbandian
----------------------------------------
Name: Gary L. Nalbandian
Title: President/Chief Executive Officer
COMMERCE BANCORP, INC.
By: /s/ Douglas J. Pauls
----------------------------------------
Name: Douglas J. Pauls
Title: Senior Vice President and Chief
Financial Officer
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