EXHIBIT 4-2
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REGISTRATION RIGHTS AGREEMENT
by and among
THE BANC CORPORATION
and
THE INVESTORS NAMED HEREIN
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Dated as of January 24, 2005
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TABLE OF CONTENTS
1. Certain Definitions..................................................... 1
2. Demand Registrations.................................................... 3
(a) Right to Request Registration...................................... 3
(b) Number of Demand Registrations..................................... 3
(c) Priority on Demand Registrations................................... 3
(d) Restrictions on Demand Registrations............................... 4
(e) Selection of Underwriters.......................................... 4
(f) Effective Period of Demand Registrations........................... 4
(g) Registration Statement Form........................................ 5
(h) Pre-emption of Demand Registration................................. 5
(i) Shelf Option....................................................... 5
3. Piggyback Registrations................................................. 6
(a) Right to Piggyback................................................. 6
(b) Priority on Primary Registrations.................................. 6
(c) Priority on Secondary Registrations................................ 6
(d) Selection of Underwriters.......................................... 6
(e) Other Registrations................................................ 6
4. Holdback Agreements..................................................... 7
5. Registration Procedures................................................. 7
6. Registration Expenses................................................... 11
7. Indemnification......................................................... 12
8. Participation in Underwritten Registrations............................. 14
9. Rule 144................................................................ 14
10. Miscellaneous........................................................... 15
(a) Notices............................................................ 15
(b) No Waivers......................................................... 15
(c) Successors and Assigns............................................. 15
(d) Governing Law...................................................... 16
(e) Jurisdiction....................................................... 16
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(f) Waiver of Jury Trial............................................... 16
(g) Counterparts; Effectiveness........................................ 16
(h) Entire Agreement................................................... 16
(i) Captions........................................................... 16
(j) Severability....................................................... 16
(k) Amendments......................................................... 17
(l) Aggregation of Stock............................................... 17
(m) Equitable Relief................................................... 17
(n) Recapitalizations, Exchanges Affecting the Registrable Securities.. 17
ii
REGISTRATION RIGHTS AGREEMENT dated as of January 24, 2005, by and
among The Banc Corporation, a Delaware corporation (the "Company"), and the
investors listed on the signature pages of this Agreement (each, a "Stockholder"
and collectively, the "Stockholders").
In consideration of the mutual covenants and agreements herein
contained and other good and valid consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. CERTAIN DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the following meanings:
"Affiliate" of any Person means any other Person which directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such Person. The term "control" (including the
terms "controlling," "controlled by" and "under common control with") as used
with respect to any Person means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.
"Common Stock" means common stock, par value $0.001 per share, of the
Company.
"Company" has the meaning set forth in the introductory paragraph.
"Covered Shares" means (x) any of the shares of Common Stock issued to
the Stockholders pursuant to the Stock Purchase Agreement or (y) any securities
issued or issuable with respect to the shares of Common Stock referred to in the
foregoing clause (x) by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise.
"Demand Registration" has the meaning set forth in Section 2(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Governmental Entity" means any national, federal, state, municipal,
local, territorial, foreign or other government or any department, commission,
board, bureau, agency, regulatory authority or instrumentality thereof, or any
court, judicial, administrative or arbitral body or public or private tribunal.
"Holder" means any holder of record of Registrable Common Stock and any
transferees of such Registrable Common Stock from such Holders. For purposes of
this Agreement, the Company may deem and treat the registered holder of
Registrable Common Stock as the Holder and absolute owner thereof, and the
Company shall not be affected by any notice to the contrary.
"Initiating Holders" has the meaning set forth in Section 2(a) hereof.
"Nasdaq" means the Nasdaq quotation system, or any successor reporting
system.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, incorporated organization,
association, corporation, institution, public benefit corporation, Governmental
Entity or any other entity.
"Piggyback Registration" shall mean any registration of the Company's
common equity securities under the Securities Act (other than a registration
statement on Form S-8 or on Form S-4 or any similar successor forms thereto),
whether such registration is effected for the Company's own account or for the
account of one or more stockholders of the Company, provided that the
registration form to be used may be used for any registration of Registrable
Common Stock.
"Prospectus" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Common Stock covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
"Registrable Common Stock" means the Covered Shares; provided, however,
that Registrable Common Stock shall not include (i) any securities sold by a
Person to the public either pursuant to a Registration Statement or Rule 144
under the Securities Act, or (ii) any securities which may be sold without
restriction or limitation pursuant to Rule 144(k) under the Securities Act, or
(iii) any securities which, in the written opinion of counsel to the Company,
may be sold during any single twelve-month period under Rule 144 under the
Securities Act.
"Registration Expenses" has the meaning set forth in Section 6(a)
hereof.
"Registration Statement" means any registration statement of the
Company which covers any of the Registrable Common Stock pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all materials incorporated by reference in such Registration
Statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholders" has the meaning set forth in the introductory paragraph.
"Stock Purchase Agreement" means the stock purchase agreement of even
date herewith executed by the Stockholders for the purchase of shares of Common
Stock.
"Suspension Notice" has the meaning set forth in Section 5(e) hereof.
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"Underwritten Registration or Underwritten Offering" means a
registration in which securities of the Company are sold to underwriters for
reoffering to the public.
"Withdrawn Demand Registration" has the meaning set forth in Section
2(f) hereof.
2. DEMAND REGISTRATIONS.
(a) Right to Request Registration. At any time after the sale and
purchase of the Covered Shares pursuant to the Stock Purchase Agreement, upon
the written request of Holders holding in the aggregate no less than 25% of all
Registrable Common Stock (such Holder or Holders who make a request, the
"Initiating Holders"), such Initiating Holders may request that the Company
effect the registration under the Securities Act of all or part of the
Registrable Common Stock held by them (a "Demand Registration"). In connection
with any Demand Registration, the Initiating Holders thereof may elect that the
Company effect such registration by filing a registration statement under the
Securities Act (a "Shelf Registration Statement") which provides for the sale by
the Initiating Holders of their Registrable Common Stock from time to time on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act (the
"Shelf Option"); provided, however, that the Initiating Holders may not elect
the Shelf Option unless at such time the Company is eligible to use Form S-3 or
any successor thereto in connection with such registration. Each request for
registration shall specify the approximate number of shares of Registrable
Common Stock requested to be registered.
Within 10 days after receipt of any such request for a Demand
Registration, the Company shall give written notice of such request to all other
Holders and shall, subject to the provisions of Sections 2(c) and 2(d) hereof,
include in such registration all such Registrable Common Stock with respect to
which the Company has received written requests for inclusion therein within 15
days after the receipt of the Company's notice.
(b) Number of Demand Registrations. Subject to the provisions of
Section 2(a), the Holders shall be entitled to request an aggregate of three (3)
Demand Registrations.
(c) Priority on Demand Registrations. If the managing underwriter(s)
(including any co-manager) of the requested Demand Registration advise the
Company in writing that in their opinion the number of shares of Registrable
Common Stock proposed to be included in any such registration exceeds the number
of securities which can be sold in such offering and/or that the number of
shares of Registrable Common Stock proposed to be included in any such
registration would adversely affect the price per share of the Company's equity
securities to be sold in such offering, the Company shall include in such
registration only the number of shares of Registrable Common Stock which in the
opinion of such managing underwriter(s) (including any co-manager) can be sold.
If the number of shares which can be sold is less than the number of shares of
Registrable Common Stock proposed to be registered, the amount of Registrable
Common Stock to be so sold shall be allocated pro rata among the Holders of
Registrable Common Stock desiring to participate in such registration on the
basis of the amount of such Registrable Common Stock initially proposed to be
registered by such other Holders. If the number of shares which can be sold
exceeds the number of shares of Registrable Common Stock proposed to be sold,
such excess shall be allocated pro rata among the other holders of securities,
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if any, desiring to participate in such registration based on the amount of such
securities initially requested to be registered by such holders or as such
holders may otherwise agree.
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration or a previous registration
under which the Initiating Holders had piggyback rights pursuant to Section 3
hereof. The Company may (i) postpone for up to ninety (90) days (subject to
extension for up to 45 additional days by a vote of a majority of the members of
the Company's Board of Directors), or withdraw, the filing or the effectiveness
of a Registration Statement for a Demand Registration if, based on the good
faith judgment of the Company's Board of Directors, such postponement or
withdrawal is necessary in order to avoid premature disclosure of a matter the
Company's Board of Directors has determined would not be in the best interest of
the Company to be disclosed at such time or (ii) postpone the filing of a Demand
Registration in the event the Company shall be required to prepare audited
financial statements as of a date other than its fiscal year end (unless the
stockholders requesting such registration agree to pay the expenses of such an
audit); provided, however, that in no event shall the Company withdraw a
Registration Statement under clause (i) after such Registration Statement has
been declared effective; and provided, further, however, that in any of the
events described in clause (i) or (ii) above, the Initiating Holders requesting
such Demand Registration shall be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration shall not count as one of the
permitted Demand Registrations. The Company shall provide written notice to the
Initiating Holders requesting such Demand Registration of (x) any postponement
or withdrawal of the filing or effectiveness of a Registration Statement
pursuant to this Section 2(d), (y) the Company's decision to file or seek
effectiveness of such Registration Statement following such withdrawal or
postponement and (z) the effectiveness of such Registration Statement. The
Company may defer the filing of a particular Registration Statement pursuant to
this Section 2(d) only twice during any twelve-month period.
(e) Selection of Underwriters. If any of the Registrable Common Stock
covered by a Demand Registration is to be sold in an underwritten offering, the
Initiating Holders shall have the right to select the managing underwriter(s) to
administer the offering subject to the approval of the Company, which will not
be unreasonably withheld; provided that the Company shall have the right to
appoint a co-manager.
(f) Effective Period of Demand Registrations. After any Demand
Registration filed pursuant to this Agreement has become effective, the Company
shall use its reasonable best efforts to keep such Demand Registration effective
for a period equal to 180 days from the date on which the SEC declares such
Demand Registration effective (or if such Demand Registration is not effective
during any period within such 180 days, such 180-day period shall be extended by
the number of days during such period when such Demand Registration is not
effective), or such shorter period which shall terminate when all of the
Registrable Common Stock covered by such Demand Registration has been sold
pursuant to such Demand Registration. If the Company shall withdraw any Demand
Registration pursuant to Section 2(d) (a "Withdrawn Demand Registration"), the
Initiating Holders of the Registrable Common Stock remaining unsold and
originally covered by such Withdrawn Demand Registration shall be entitled to a
replacement Demand Registration which (subject to the provisions of this Section
2) the Company shall use
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its reasonable best efforts to keep effective for a period commencing on the
effective date of such Demand Registration and ending on the earlier to occur of
the date (i) which is 180 days from the effective date of such Demand
Registration and (ii) on which all of the Registrable Common Stock covered by
such Demand Registration has been sold. Such additional Demand Registration
otherwise shall be subject to all of the provisions of this Agreement.
(g) Registration Statement Form. Demand Registrations shall be on such
appropriate registration form of the SEC as shall be selected by the Company and
as shall be reasonably acceptable to the Holders of 51% of the Registrable
Securities requested to be registered.
(h) Pre-emption of Demand Registration. Notwithstanding anything to the
contrary contained herein, if at any time a Holder or the Holders shall request
a Demand Registration pursuant to this Section 2, the Company may elect at that
time to effect an underwritten primary registration if, based on the good faith
judgment of a majority of the members of the Company's Board of Directors, it
would be in the best interests of the Company to access the public market to
raise equity capital. If the Company elects to effect a primary registration
after receiving such a request for a Demand Registration, the Company will give
prompt written notice (and in any event within thirty (30) days after receiving
such a request for a Demand Registration) to all Holders of Registrable
Securities of the class to be registered of its intention to effect such a
registration and shall afford such Holders rights to Piggyback Registrations
contained in Section 3 hereof, except that if the managing underwriter(s)
(including any co-manager) of such offering advise the Company in writing that
in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
materially and adversely affecting the marketability of such offering, the
provisions of Section 3(b) hereof shall not apply to such offering, and instead
the Company shall include in such registration the maximum number of securities
which such underwriter(s) (including any co-manager) advise can be sold in such
offering allocated (x) first, equally (as opposed to pro rata) among the
Company, on the one hand, and the Holders as a group, on the other hand (and
reallocated among such Holders pro rata on the basis of the number of securities
requested to be registered by such Holders), until either the Company or the
Holders as a group have been allocated the full number of securities requested
to be included in such registration by the Company or the Holders, as the case
may be, (y) second, to either the Company or the Holders as a group (and
reallocated among such Holders pro rata on the basis of the number of securities
requested to be registered by such Holders), as the case may be, to the extent
that such party was not allocated the full number of its requested securities
pursuant to clause (x) above, until the Company or the Holders as a group, as
the case may be, have been allocated the full number of securities requested to
be included in such registration, and (z) third, to the holders of all other
securities requested to be included in such registration pro rata among such
holders on the basis of the number of securities requested to be registered by
such holders or as such holders may otherwise agree. In the event that the
Company so elects to effect such a primary registration after receiving a
request for such a Demand Registration, such registration shall not count as one
of the permitted Demand Registrations of the Holders who requested such
registration.
(i) Shelf Option. If the Initiating Holders elect the Shelf Option, the
Company agrees to use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective and usable for the resale of the applicable
Registrable Common Stock for a period
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ending on the first date on which all the Registrable Common Stock covered by
such Shelf Registration Statement have been sold pursuant to such Shelf
Registration Statement, but in no event longer than 180 days.
3. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. Whenever the Company proposes to effect a
Piggyback Registration, the Company shall give prompt written notice (in any
event within 10 days after its receipt of written notice of any exercise of
other demand registration rights) to all Holders of its intention to effect such
a registration and, subject to Sections 3(b) and 3(c), shall include in such
registration all Registrable Common Stock with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice. The Company may postpone or withdraw the filing or the
effectiveness of a Piggyback Registration at any time in its sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriter(s) (including any co-manager) advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering and/or that
the number of shares of Registrable Common Stock proposed to be included in any
such registration would adversely affect the price per share of the Company's
equity securities to be sold in such offering, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, and (ii)
second, the securities requested to be included in such registration (including
the Registrable Common Stock requested to be included therein), pro rata among
the holders of such securities on the basis of the number of shares requested to
be registered by such holders.
(c) Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of a holder of the Company's
securities other than Registrable Common Stock, and the managing underwriter(s)
(including any co-manager) advise the Company in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering and/or that the number of shares
of Registrable Common Stock proposed to be included in any such registration
would adversely affect the price per share of the Company's equity securities to
be sold in such offering, the Company shall include in such registration the
securities requested to be included therein (including the Registrable Common
Stock requested to be included in such registration), pro rata among the holders
of such securities on the basis of the number of shares requested to be
registered by such holders.
(d) Selection of Underwriters. If any Piggyback Registration is an
underwritten primary offering, the Company shall have the right to select the
managing underwriter(s) to administer any such offering.
(e) Other Registrations. If the Company has previously filed a
Registration Statement with respect to Registrable Common Stock pursuant to
Section 2 hereof or pursuant to this Section 3, and if such previous
registration has not been withdrawn or abandoned, the
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Company shall not be obligated to cause to become effective any other
registration of any of its securities under the Securities Act, whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least six months has elapsed from the effective date of such
previous registration.
4. HOLDBACK AGREEMENTS.
(a) The Company agrees not to effect any sale or distribution of any of
its equity securities during the 10 days prior to and during the 180 days
beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or S-4 or any successor
forms thereto) unless the underwriter(s) (including any co-manager) managing the
offering otherwise agree to a shorter period.
(b) In connection with any Piggyback Registration or Demand
Registration involving an underwritten offering, each Holder of Registrable
Common Stock not included in such Piggyback Registration or Demand Registration,
as the case may be, agrees not to sell or otherwise transfer or dispose of any
shares of Registrable Common Stock of the Company held by them for a period
equal to the lesser of one hundred eighty (180) days following the effective
date of a registration statement of the Company filed under the Securities Act
or such shorter period as the managing underwriter(s) (including any co-manager)
shall agree to. Without limiting the foregoing, each Holder agrees to enter into
a written agreement to the foregoing effect, and such agreement shall be in form
satisfactory to the Company and the managing underwriter(s) (including any
co-manager). The Company may impose stop-transfer instructions with respect to
the shares of Registrable Common Stock subject to the foregoing restriction
until the end of said period. The foregoing shall not apply to (i) the exercise
of any warrants or stock options to purchase shares of capital stock of the
Company (provided that such limitation does not affect limitations on any
actions specified in the first sentence of this Section 4(b) with respect to the
shares issuable upon such exercise), or (ii) transfers to Affiliates where the
transferee agrees to be bound by the terms hereof.
5. REGISTRATION PROCEDURES.
(a) Subject to the second sentence of Section 2(d) (in the case of a
Demand Registration) and the last sentence of Section 3(a) (in the case of a
Piggyback Registration), whenever the Holders request that any Registrable
Common Stock be registered pursuant to this Agreement, the Company shall use its
reasonable best efforts to effect the registration and the sale of such
Registrable Common Stock in accordance with the intended methods of disposition
thereof, and pursuant thereto the Company shall as expeditiously as reasonably
possible:
(i) prepare and file with the SEC a Registration Statement
with respect to such Registrable Common Stock and use its reasonable
best efforts to cause such Registration Statement to become effective
as soon as practicable thereafter; and before filing a Registration
Statement or Prospectus or any amendments or supplements thereto,
furnish to the Holders of Registrable Common Stock covered by such
Registration Statement and the underwriter(s), if
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any, copies of all such documents proposed to be filed, including
documents incorporated by reference in the Prospectus and, if requested
by such Holders, the exhibits incorporated by reference, and such
Holders shall have the opportunity to object to any information
pertaining to such Holders that is contained therein, and the Company
will make the corrections reasonably requested by such Holders with
respect to such information prior to filing any Registration Statement
or amendment thereto or any Prospectus or any supplement thereto;
(ii) 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 such a period as is required in this Agreement
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 set forth in such Registration Statement;
(iii) furnish to each seller of Registrable Common Stock
covered by such Registration Statement such number of copies of such
Registration Statement, each amendment and supplement thereto, the
Prospectus included in such Registration Statement (including each
preliminary Prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Registrable Common Stock owned by such seller;
(iv) use its reasonable best efforts to register or qualify
such Registrable Common Stock under such other securities or blue sky
laws of such jurisdictions as any seller reasonably requests and do any
and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Common Stock owned by such seller
(provided, that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph (iv), (B)
subject itself to taxation in any such jurisdiction or (C) consent to
general service of process in any such jurisdiction);
(v) notify each seller of such Registrable Common Stock, at
any time when a Prospectus relating thereto is required to be delivered
under the Securities Act, of the occurrence of any event as a result of
which the Prospectus included in such Registration Statement contains
an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and, at the request of any such seller, the
Company shall prepare a supplement or amendment to such Prospectus so
that, as thereafter delivered to the purchasers of such Registrable
Common Stock, such Prospectus shall not contain an untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading;
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(vi) in the case of an underwritten offering, enter into
customary agreements (including underwriting agreements in customary
form) which the managing underwriter(s) (including any co-manager) may
reasonably request in order to expedite or facilitate the disposition
of such Registrable Common Stock (including, without limitation,
effecting a stock split or a combination of shares and making members
of senior management of the Company available to participate in, and
cause them to cooperate with the underwriters in connection with,
"road-shows" and other customary marketing activities (including
one-on-one meetings with prospective purchasers of the Registrable
Common Stock)) and cause to be delivered to the underwriter(s) and the
sellers, if any, opinions of counsel to the Company in customary form,
covering such matters as are customarily covered by opinions for an
underwritten public offering as the underwriter(s) may reasonably
request and addressed to the underwriter(s) and the sellers, if any;
(vii) make available, for inspection by any seller of
Registrable Common Stock, 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, in
each case to the extent legally required or customary in such
transactions and subject to the execution of confidentiality agreements
reasonably satisfactory to the Company;
(viii) use its reasonable best efforts to cause all such
Registrable Common Stock to be listed on each securities exchange or
quotation system on which securities of the same class issued by the
Company are then listed;
(ix) provide a transfer agent and registrar for all such
Registrable Common Stock not later than the effective date of such
Registration Statement;
(x) if requested, cause to be delivered, immediately prior
to the effectiveness of the Registration Statement (and, in the case of
an underwritten offering, at the time of delivery of any Registrable
Common Stock sold pursuant thereto), letters from the Company's
independent certified public accountants addressed to each selling
Holder (unless such selling Holder does not provide to such accountants
the appropriate representation letter required by rules governing the
accounting profession) and each underwriter, if any, stating that such
accountants are independent public accountants within the meaning of
the Securities Act and the applicable rules and regulations adopted by
the SEC thereunder, and otherwise in customary form and covering such
financial and accounting matters as are customarily covered by letters
of the independent certified public accountants delivered in connection
with primary or secondary underwritten public offerings, as the case
may be; and
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(xi) promptly notify each seller of such Registrable Common
Stock and the underwriter(s), if any:
(1) when the Registration Statement, any pre-
effective amendment, the Prospectus or any Prospectus
supplement or post-effective amendment to the Registration
Statement has been filed and, with respect to the Registration
Statement or any post-effective amendment thereto, when the
same has become effective;
(2) of any written request by the SEC for amendments
or supplements to the Registration Statement or Prospectus;
(3) of the notification to the Company by the SEC of
its initiation of any proceeding with respect to the issuance
by the SEC of any stop order suspending the effectiveness of
the Registration Statement; and
(4) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any
Registrable Common Stock for sale under the applicable
securities or blue sky laws of any jurisdiction.
(b) No Registration Statement (including any amendments or supplements
thereto and Prospectuses contained therein) shall contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading (except, with
respect to any Holder, for an untrue statement or alleged untrue statement of
any material fact or omission or alleged omission of any material fact made in
reliance on and in conformity with written information furnished to the Company
by or on behalf of such Holder specifically for use therein).
(c) The Company shall make available to each Holder whose Registrable
Common Stock is included in a Registration Statement (i) promptly after the same
is prepared and publicly distributed, or filed with the SEC, one copy of each
Registration Statement and any amendment thereto, and each preliminary
Prospectus and final Prospectus and each amendment or supplement thereto, and
(ii) such number of copies of a Prospectus, including a preliminary Prospectus,
and all amendments and supplements thereto and such other documents as such
Holder may reasonably request in order to facilitate the disposition of the
Registrable Common Stock owned by such Holder. The Company will promptly notify
each Holder of the effectiveness of each Registration Statement or any
post-effective amendment. The Company will promptly respond to any and all
comments received from the SEC, with a view towards causing each Registration
Statement or any amendment thereto to be declared effective by the SEC as soon
as reasonably practicable and shall file an acceleration request as soon as
reasonably practicable following the resolution or clearance of all SEC comments
or, if applicable, following notification by the SEC that any such Registration
Statement or any amendment thereto will not be subject to review.
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(d) The Company may require each seller of Registrable Common Stock as
to which any registration is being effected to furnish to the Company any other
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
(e) Each seller of Registrable Common Stock agrees by having its stock
treated as Registrable Common Stock hereunder that, upon notice of the happening
of any event as a result of which the Prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading (a "Suspension Notice"), such seller will forthwith
discontinue disposition of Registrable Common Stock for a reasonable length of
time not to exceed 60 days until such seller is advised in writing by the
Company that the use of the Prospectus may be resumed and is furnished with a
supplemented or amended Prospectus as contemplated by Section 5(c) hereof, and,
if so directed by the Company, such seller will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
seller's possession, of the Prospectus covering such Registrable Common Stock
current at the time of receipt of such notice; provided, however, that such
postponement of sales of Registrable Common Stock by the Holders shall not
exceed one hundred twenty (120) days in the aggregate in any one year. Each
seller of Registrable Common Stock further agrees by having its stock treated as
Registrable Common Stock hereunder that it shall maintain in confidence and not
disclose the receipt of any Suspension Notice. If the Company shall give any
notice to suspend the disposition of Registrable Common Stock pursuant to a
Prospectus, the Company shall extend the period of time during which the Company
is required to maintain the Registration Statement effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date such seller either is
advised by the Company that the use of the Prospectus may be resumed or receives
the copies of the supplemented or amended Prospectus contemplated by Section
5(c). In any event, the Company shall not be entitled to deliver more than three
(3) Suspension Notices in any one year.
6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, listing
application fees, printing expenses, transfer agent's and registrar's fees, cost
of distributing Prospectuses in preliminary and final form as well as any
supplements thereto, and fees and disbursements of counsel for the Company and
all independent certified public accountants and other Persons retained by the
Company (all such expenses being herein called "Registration Expenses") (but not
including any underwriting discounts or commissions attributable to the sale of
Registrable Common Stock or fees and expenses of more than one counsel
representing the Holders of Registrable Common Stock), shall be borne by the
Company.
(b) In connection with each registration initiated hereunder, the
Company shall reimburse the Holders covered by such registration or sale for the
reasonable fees and
11
disbursements of one law firm chosen by the Holders of a majority of the number
of shares of Registrable Common Stock included in such registration or sale.
(c) The obligation of the Company to bear the expenses described in
Section 6(a) and to reimburse the Holders for the expenses described in Section
6(b) shall apply irrespective of whether a registration, once properly demanded,
if applicable, becomes effective, is withdrawn or suspended, is converted to
another form of registration and irrespective of when any of the foregoing shall
occur; provided, however, that Registration Expenses for any Registration
Statement withdrawn solely at the request of a Holder of Registrable Common
Stock (unless withdrawn following postponement of filing by the Company in
accordance with Section 2(d)(i) or (ii)) or any supplements or amendments to a
Registration Statement or Prospectus resulting from a misstatement furnished to
the Company by a Holder shall be borne by such Holder.
7. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless, to the fullest
extent permitted by law, each Holder, its officers, directors and Affiliates and
each Person who controls such Holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses arising out of or
based upon any untrue or alleged untrue statement of material fact contained in
any Registration Statement, Prospectus or preliminary Prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or any violation or alleged violation by the Company of
the Securities Act, the Exchange Act or applicable "blue sky" laws, except
insofar as the same are made in reliance and in conformity with information
relating to such Holder furnished in writing to the Company by or on behalf of
such Holder expressly for use therein or caused by such Holder's failure to
deliver to such Holder's immediate purchaser a copy of the Registration
Statement or Prospectus or any amendments or supplements thereto (if the same
was required by applicable law to be so delivered) after the Company has
furnished such Holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company shall indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Holders; provided,
however, that the Company will not be liable to any Person who participates as
an underwriter in the offering or sale of Registrable Common Stock or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, under the indemnity agreement in this Section 7(a) with respect
to any preliminary prospectus or the final prospectus as amended or
supplemented, as the case may be, to the extent that any such loss, claim,
damage, liability or expense of such underwriter or controlling Person results
from the fact that such underwriter sold Registrable Common Stock to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus (including any documents incorporated
by reference therein) or of the final prospectus as then amended or supplemented
(including any documents incorporated by reference therein), whichever is most
recent, if the Company has previously furnished sufficient copies thereof to
such underwriter.
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(b) In connection with any Registration Statement in which a Holder of
Registrable Common Stock is participating, each such Holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and shall indemnify and hold harmless, to the fullest extent
permitted by law, the Company, its officers, directors Affiliates, and each
Person who controls the Company (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses arising out of or
based upon any untrue or alleged untrue statement of material fact contained in
the Registration Statement, Prospectus or preliminary Prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that the same are made in
reliance and in conformity with information relating to such Holder furnished in
writing to the Company by or on behalf of such Holder expressly for use therein
or caused by such Holder's failure to deliver to such Holder's immediate
purchaser a copy of the Registration Statement or Prospectus or any amendments
or supplements thereto (if the same was required by applicable law to be so
delivered) after the Company has furnished such Holder with a sufficient number
of copies of the same; provided, however, that the obligation to indemnify shall
be several, not joint and several, among such Holders and the liability of each
such Holder shall be in proportion to and limited to the net amount received by
such Holder from the sale of Registrable Common Stock pursuant to such
Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification 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, (x) the
indemnifying party shall not consent to the 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 the indemnified party of a release from
all liability with respect to such claim or litigation, without the prior
consent of the indemnified party, and (y) the indemnifying party shall 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). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim shall not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party there may
be one or more legal or equitable defenses available to such indemnified party
which are in addition to or may conflict with those available to another
indemnified party with respect to such claim. Failure to give prompt written
notice shall not release the indemnifying party from its obligations hereunder.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
13
(e) If the indemnification provided for in or pursuant to this Section
7 is due in accordance with the terms hereof, but is held by a court of
competent jurisdiction to be unavailable or unenforceable in respect of any
losses, claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified Person as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which result in such losses, claims, damages,
liabilities or expenses as well as any other relevant equitable considerations.
The relative fault of the indemnifying party on the one hand and of the
indemnified Person on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party, and by such
party's relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. In no event shall the liability
of any selling Holder be greater in amount than the amount of net proceeds
received by such Holder upon such sale or the amount for which such indemnifying
party would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 7(a) or 7(b) hereof had been
available under the circumstances.
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.
9. RULE 144.
The Company covenants that (A) it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and (B) it will take such further
action as any Holder may reasonably request to make available adequate current
public information with respect to the Company meeting the current public
information requirements of Rule 144(c) under the Securities Act, to the extent
required to enable such Holder to sell Registrable Common Stock without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the SEC. Notwithstanding anything to the contrary contained in this Agreement,
the Company's obligation to include, or continue to include, shares of
Registrable Common Stock in any Registration Statement pursuant to this
Agreement shall terminate to the extent such shares of Registrable Common Stock
are eligible for resale pursuant to Rule 144(k) under the Securities Act.
14
10. MISCELLANEOUS.
(a) Notices. All notices, requests, consents and other communications
required or permitted hereunder shall be in writing and shall be hand delivered
or mailed postage prepaid by registered or certified mail or by facsimile
transmission (with immediate telephone confirmation thereafter),
(i) If to the Company:
The Banc Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr.
with a copy to (which shall not constitute notice):
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Young & Rediker, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
(ii) if to any Stockholder, to the address(es) set forth on
the counterpart signature pages of this Agreement signed by such
Stockholder;
(iii) if to a transferee Holder, to the address of such Holder
set forth in the transfer documentation provided to the Company;
or, in each case, at such other address as such party each may specify by
written notice to the others, and each such notice, request, consent and other
communication shall for all purposes of the Agreement be treated as being
effective or having been given when delivered personally, upon receipt of
facsimile confirmation if transmitted by facsimile, or, if sent by mail, at the
earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of United States mail, addressed
and postage prepaid as aforesaid.
(b) No Waivers. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(c) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, it being understood that subsequent Holders of the
Registrable Common Stock are intended third party beneficiaries hereof.
15
(d) Governing Law. The internal laws of Alabama shall govern the
enforceability and validity of this Agreement, the construction of its terms and
the interpretation of the rights and duties of the parties.
(e) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in any federal
or state court located in Jefferson County and State of Alabama, and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 10(a) shall be deemed
effective service of process on such party.
(f) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts (including by facsimile) and by different parties hereto
in separate counterparts, with the same effect as if all parties had signed the
same document. All such counterparts shall be deemed an original, shall be
construed together and shall constitute one and the same instrument. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
(h) Entire Agreement. This Agreement contains the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes and replaces all other prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof.
(i) Captions. The headings and other captions in this Agreement are for
convenience and reference only and shall not be used in interpreting, construing
or enforcing any provision of this Agreement.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
16
(k) Amendments. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
without the prior written consent of the Company and the holders of a majority
of the shares of Registrable Common Stock; provided, however, that without a
Holder's written consent no such amendment, modification, supplement or waiver
shall affect adversely such Holder's rights hereunder in a discriminatory manner
inconsistent with its adverse effects on rights of other Holders hereunder
(other than as reflected by the different number of shares held by such Holder).
This Agreement cannot be changed, modified, discharged or terminated by oral
agreement.
(l) Aggregation of Stock. All Registrable Common Stock held by or
acquired by any Affiliated Persons will be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
(m) Equitable Relief. The parties hereto agree that legal remedies may
be inadequate to enforce the provisions of this Agreement and that equitable
relief, including specific performance and injunctive relief, may be used to
enforce the provisions of this Agreement.
(n) Recapitalizations, Exchanges Affecting the Registrable Securities.
The provisions of this Agreement shall apply, to the full extent set forth
herein, with respect to the Registrable Common Stock, to any and all shares of
stock of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution of the Registrable Common Stock,
by reason of a stock dividend, stock split, stock issuance, reverse stock split,
combination, recapitalization, reclassification, merger, consolidation or
otherwise. Upon the occurrence of any of such events, amounts hereunder shall be
appropriately adjusted.
[Execution Pages Follow]
17
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
The Banc Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Chairman of the Special
Negotiating Committee
----------------------------------
18
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
19
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
Colonial Bank, N.A., Trustee,
▇▇▇ of C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:
-------------------------------------
Name:
-----------------------------------
Its:
-----------------------------------
20
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
Miller, Hamilton, ▇▇▇▇▇▇ & ▇▇▇▇, LLC,
escrow agent FBO C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Its: Member
----------------------------------
21
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
22
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
Forest Hill Select Fund, LP
By: /s/ ▇▇▇▇ ▇. ▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
----------------------------------
Its: Manager/MG GP
----------------------------------
23
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
Forest Hill Offshore, Ltd.
By: /s/ ▇▇▇▇ ▇. ▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
----------------------------------
Its: Manager/MG GP
----------------------------------
24
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
25
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇
26
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
/s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
C. ▇▇▇▇▇▇ ▇▇▇▇▇
27
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
Miller, Hamilton, ▇▇▇▇▇▇ & ▇▇▇▇, LLC,
escrow agent of C. ▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Its: Member
----------------------------------
28