EXHIBIT 10.4
FORM OF REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
December ____, 2004, between North Country Financial Corporation, a Michigan
corporation (the "Company"), and each of the Persons who have executed this
Agreement and are named in Annex A hereto (each, an "Investor" and,
collectively, the "Investors").
Execution and delivery of this Agreement by the parties hereto are
conditions to each Investor purchasing Shares (as defined below) from the
Company under the Subscription Agreement (as defined below). Accordingly, the
parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Section 1 have the meanings herein specified for all purposes of
this Agreement, applicable to both the singular and plural forms of such terms:
"Board" means the Board of Directors of the Company.
"Closing Date" has the meaning given in the Subscription Agreement;
provided that if there is more than one Closing Date pursuant to the
Subscription Agreement, this term shall refer to the latest such Closing Date.
"Common Stock" means the common stock, no par value of the Company.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means the record owner of Registrable Securities.
"Person" means any natural person, corporation, trust, association,
limited liability company, partnership, joint venture or other entity and any
government, governmental agency, instrumentality or political subdivision.
"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 the effectiveness of such
registration statement.
"Registrable Securities" means the Shares and any shares of capital stock
issued or issuable from time to time as a dividend or other distribution with
respect to, or in exchange for or in replacement of, the Shares if and so long
as: (i) they have not been sold to or through a broker or dealer or underwriter
in a public distribution or a public securities transaction; or (ii) they have
not been sold in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act under Section 4(1) thereof so that
all transfer restrictions and restrictive legends with respect to such Shares
are removed upon the consummation of such sale; or (iii) they could not be sold
without registration by any Holder thereof pursuant to Rule 144 promulgated
under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the shares of Common Stock sold and issued to the Investors
pursuant to the Subscription Agreement.
"Subscription Agreement" means one or more Subscription Agreements of even
date herewith between the Company and each Investor relating to the purchase and
sale of the Shares.
SECTION 2. REQUIRED REGISTRATION.
(a) Subject to the receipt of all necessary information from the
Investors, the Company shall use commercially reasonable efforts to prepare and
file a registration statement on Form S-3 under the Securities Act covering the
Registrable Securities (the "Registration Statement"), on or before the date
that is ninety (90) days after the Closing Date (the "Filing Date"), and shall
use its commercially reasonable efforts to cause such Registration Statement to
become effective as soon as practicable after filing, and in any event no later
than March 31, 2005 (the "Effectiveness Date"); provided, however, that if the
Company receives notification from the SEC that the Registration Statement will
receive no action or review from the SEC, then the Company will, subject to its
rights under Section 2(d) below, cause the Registration Statement to become
effective within five business days after such SEC notification. Notwithstanding
the foregoing, if Form S-3 is not available for use by the Company, then the
Company will file a Registration Statement on such form as is then available to
effect a registration of the Registrable Securities, subject to the consent of
the Holders of a majority of the Registrable Securities then outstanding, which
consent will not be unreasonably withheld or delayed.
(b) The Company shall use its commercially reasonable efforts to
maintain the effectiveness of the Registration Statement under the Securities
Act until the earliest of: (i) the date that is two years after the Closing
Date; and (ii) the date on which all of the Registrable Securities have been
sold pursuant to the Registration Statement or no longer constitute Registrable
Securities (the "Registration Period").
(c) Notwithstanding the foregoing, if the Company is engaged in any
activity or transaction or preparations or negotiations for any activity or
transaction that the Company desires to keep confidential for business reasons
and the Company determines in good faith that the public disclosure requirements
imposed on the Company under the Securities Act in connection with a
registration hereunder would require disclosure of such activity, transaction,
preparation or negotiations and that such disclosure would be seriously
detrimental to the Company, the Company shall have the right, by written notice
to the Holders: (i) to withdraw a registration statement after filing and after
such notice, but prior to the effectiveness thereof; or (ii) suspend the
effectiveness thereof for a period not to exceed 90 days; provided that such
right may not be exercised more than once in any twelve-month period.
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SECTION 3. PIGGY-BACK REGISTRATION.
(a) If, at any time prior to the expiration of the Registration
Period a Registration Statement is not effective with respect to all of the
Shares, each time the Company determines to file a registration statement under
the Securities Act (other than pursuant to Section 2 hereof and other than a
registration statement on Form S-4 or Form S-8 or a registration statement on
Form S-1 covering solely an employee benefit plan) in connection with the
proposed offer and sale for money of any of its securities, either for its own
account or on behalf of any other security holder, it will give prompt written
notice of its determination to all Holders of Registrable Securities. Upon the
written request of a Holder of Registrable Securities given within 20 days after
the receipt of such written notice, the Company will use commercially reasonable
efforts to cause all such Registrable Securities, the Holders of which have so
requested registration, to be included in such registration statement and
registered under the Securities Act, all to the extent requisite to permit the
sale or other disposition by the prospective seller or sellers of the
Registrable Securities to be so registered.
(b) If the registration of which the Company gives written notice
pursuant to Section 3(a) is for a public offering involving an underwriting, the
Company will so advise the Holders as a part of its written notice. In such
event, the right of any Holder to registration pursuant to this Section 3 is
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
with the underwriter or underwriters selected for such underwriting by the
Company, along with the Company and the other holders distributing their
securities through such underwriting; provided, that such underwriting agreement
is in customary form and is reasonably acceptable to the Holders of a majority
of the Registrable Securities requesting to be included in such registration.
(c) Notwithstanding any other provision of this Section 3, if the
managing underwriter of an underwritten distribution advises the Company and the
Holders of the Registrable Securities participating in such registration in
writing that in its good faith judgment the number of shares of Registrable
Securities and the other securities requested to be registered exceeds the
number of shares of Registrable Securities and other securities which can be
sold in such offering, then: (i) the number of shares of Registrable Securities
and other securities so requested to be included in the offering will be reduced
to that number of shares which in the good faith judgment of the managing
underwriter can be sold in such offering (except for shares to be issued by the
Company in an offering initiated by the Company, which will have priority over
the shares of Registrable Securities); and (ii) subject to existing priority
rights of the holders of such other securities, such reduced number of shares
will be allocated among all participating Holders of Registrable Securities and
the holders of other securities in proportion, as nearly as practicable, to the
respective number of shares of Registrable Securities and other securities held
by such Holders and other holders at the time of filing the registration
statement in relation to the total number of shares of Common Stock outstanding
on a fully diluted basis. All Registrable Securities which are excluded from the
underwriting by reason of the underwriter's marketing limitation and all other
Registrable Securities not originally requested to be so included will not be
included in such registration and will be withheld from the market by the
Holders thereof for a period, not to exceed 180 days, which
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the managing underwriter reasonably determines is necessary to effect the
underwritten public offering.
SECTION 4. REGISTRATION PROCEDURES. If and whenever the Company is
required by the provisions of Section 2 or 3 hereof to effect the registration
of Registrable Securities under the Securities Act, the Company will:
(a) In accordance with the Securities Act and all applicable rules
and regulations thereunder, prepare and file with the Commission a registration
statement with respect to such securities and use its commercially reasonable
efforts to cause such registration statement to become effective, and use its
commercially reasonable efforts to cause such registration statement to remain
effective (including preparing and filing with the Commission such amendments
and supplements to such registration statement and the prospectus contained
therein as may be necessary to keep such registration statement effective) until
the securities covered by such registration statement have been sold or as
otherwise set forth in Section 2;
(b) If the offering is to be underwritten in whole or in part, enter
into a customary written underwriting agreement in form and substance reasonably
satisfactory to the managing underwriter of the public offering, the Company and
the Holders of a majority of the Registrable Securities participating in such
offering;
(c) Furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such number of copies of the
registration statement and each amendment and supplement thereto, preliminary
prospectus, final prospectus and such other documents as such underwriters and
Holders may reasonably request in order to facilitate the public offering of
such securities; provided, however, that the obligation of the Company to
deliver copies of prospectuses or preliminary prospectuses to any Holder shall
be subject to the receipt by the Company of reasonable assurances from such
Holder that the Holder will comply with the applicable provisions of the
Securities Act and of such other securities or blue sky laws as may be
applicable in connection with any use of such prospectuses or preliminary
prospectuses;
(d) Use its commercially reasonable efforts to register or qualify
the securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such participating Holders
and underwriters may reasonably request within ten days prior to the original
filing of such registration statement, except that the Company will not for any
purpose be required to execute a general consent to service of process or to
qualify to do business as a foreign corporation in any jurisdiction where it is
not so qualified;
(e) Notify the Holders participating in such registration, promptly
after it receives notice thereof, of the date and time when such registration
statement and each post-effective amendment thereto has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
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(f) Notify such Holders promptly of any request by the Commission
for the amending or supplementing of such registration statement or prospectus
or for additional information;
(g) Prepare and file with the Commission, promptly upon the request
of any such Holders, any amendments or supplements to such registration
statement or prospectus which, in the written opinion of counsel for such
Holders, which opinion shall be reasonably acceptable to counsel for the
Company, is required under the Securities Act or the rules and regulations of
the Commission thereunder in connection with the distribution of the Registrable
Securities by such Holders;
(h) Prepare and file promptly with the Commission, and promptly
notify such Holders of the filing of, such amendments or supplements to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event has
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(i) Advise such Holders, promptly after it receives notice or
obtains knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its commercially
reasonable efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued; and
(j) At the request of any Holder of Registrable Securities covered
by such registration statement, furnish to such Holder on the effective date of
the registration statement or, if such registration includes an underwritten
public offering, at the closing provided for in the underwriting agreement, an
opinion dated such date of the counsel representing the Company for the purposes
of such registration, addressed to the underwriters, if any, and to the Holder
or Holders making such request, covering such matters with respect to the
registration statement, the prospectus and each amendment or supplement thereto,
proceedings under state and federal securities laws, other matters relating to
the Company, the securities being registered and the offer and sale of such
securities as are customarily the subject of opinions of issuer's counsel
provided to underwriters in underwritten public offerings.
(k) Provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the Effectiveness Date.
SECTION 5. ACCURACY OF REGISTRATION STATEMENT. Subject to the Company's
rights under Section 10, any Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) filed by the Company
covering Registrable Securities will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein, or
necessary to make the statements therein, in light of the
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circumstances in which they were made, not misleading. Subject to the
limitations set forth in Section 10, the Company will prepare and file with the
SEC such amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to permit sales pursuant to the
Registration Statement at all times during the Registration Period, and, during
such period, will comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities of the Company covered by the
Registration Statement until the termination of the Registration Period, or if
earlier, until such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof as set forth in the Registration Statement.
SECTION 6. ADDITIONAL OBLIGATIONS OF THE COMPANY.
6.1 Review by Investors. The Company will permit Barack ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, to review the Registration Statement and all
amendments and supplements thereto (as well as all requests for acceleration or
effectiveness thereof) a reasonable period of time prior to their filing with
the SEC, and will not file any document in a form to which such counsel
reasonably objects, unless otherwise required by law in the opinion of the
Company's counsel. The sections of any such Registration Statement including
information with respect to the Investors, the Investors' beneficial ownership
of securities of the Company or the Investors' intended method of disposition of
Registrable Securities must conform to the information provided to the Company
by each of the Investors.
6.2 Expenses. With respect to the registration effected pursuant to
Section 2 hereof, the Company will bear all fees, costs and expenses of and
incidental to such registration and the public offering in connection therewith;
provided, however, that the Company shall not be liable for any underwriting
discounts and commissions, which in all cases shall be borne by the Holders.
Such fees, costs and expenses of registration to be borne as provided in the
preceding sentence, include, without limitation, all registration, filing and
NASD fees, printing expenses, fees and disbursements of counsel and accountants
for the Company, all expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered or qualified and reasonable fees and disbursements (not to exceed
$50,000) of one firm of counsel for all selling security holders, selected by
the Holders of a majority of the Registrable Securities to be included in such
registration, and reasonably acceptable to the Company.
6.3 Due Diligence. The Company will make available for inspection by any
Investor whose Registrable Securities are being sold pursuant to a Registration
Statement and one firm of attorneys retained by the Investors (collectively, the
"Inspectors"), all pertinent financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records"), as each
Inspector reasonably deems necessary to enable the Inspector to exercise its due
diligence responsibility. The Company will cause its officers, directors and
employees to supply all information that any Inspector may reasonably request
for purposes of performing such due diligence. Each Inspector will hold in
confidence, and will not make any disclosure of, any Records or other
information that the Company
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determines in good faith to be confidential, and of which determination the
Inspectors are so notified, unless: (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement; (ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court or government body of competent jurisdiction, or (iii)
the information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Holder of
Registrable Securities which are included in a registration statement pursuant
to the provisions of this Agreement and each of such Holder's officers,
directors, partners, legal counsel and accountants, and each Person who controls
such Holder within the meaning of the Securities Act and any underwriter (as
defined in the Securities Act) for such Holder, and any Person who controls such
underwriter within the meaning of the Securities Act, from and against, and to
reimburse such Holder, its officers, directors, partners, legal counsel,
accountants and controlling Persons and each such underwriter and controlling
Person of such underwriter with respect to, any and all claims, actions (actual
or threatened), demands, losses, damages, liabilities, costs and expenses to
which such Holder, its officers, directors, partners, legal counsel, accountants
or controlling Persons or any such underwriter or controlling Person of such
underwriter may become subject under the Securities Act or otherwise, insofar as
such claims, actions, demands, losses, damages, liabilities, costs or expenses
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, any prospectus
contained therein, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in light of the circumstances in which they were made; provided,
however, that the Company will not be liable in any such case to the extent that
any such claim, action, demand, loss, damage, liability, cost or expense is
caused by an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with written information furnished by such
Holder, such underwriter or such controlling Person specifically for use in the
preparation thereof.
(b) Each Holder of shares of Registrable Securities that are
included in a registration statement pursuant to the provisions of this
Agreement agrees, severally and not jointly, to indemnify and hold harmless the
Company, its officers, directors, legal counsel and accountants, any underwriter
and each Person who controls the Company or any underwriter within the meaning
of the Securities Act, from and against, and agrees to reimburse the Company,
its officers, directors, legal counsel, accountants and controlling Persons, any
underwriter with respect to, any and all claims, actions, demands, losses,
damages, liabilities, costs or expenses to which the Company, its officers,
directors, legal counsel, accountants, such controlling Persons, or any
underwriter may become subject under the Securities Act or otherwise, insofar as
such claims, actions, demands, losses, damages, liabilities, costs or expenses
are caused by any untrue or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained therein or
any amendment or supplement
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thereto, or are caused by the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, in each case, to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
so made in reliance upon and in conformity with written information furnished by
such Holder specifically for use in the preparation thereof. Notwithstanding the
foregoing, no Holder of Registrable Securities will be obligated hereunder to
pay more than the net proceeds realized by it upon its sale of Registrable
Securities included in such registration statement.
(c) Promptly after receipt by a party indemnified pursuant to the
provisions of subsection (a) or (b) of this Section of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim therefor is to be
made against the indemnifying party pursuant to the provisions of subsection (a)
or (b), notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section and will not relieve the indemnifying party from liability under this
Section 6 unless such indemnifying party is prejudiced by such omission. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party reasonably concludes that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties will have the right to select separate counsel (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party or parties). Upon the
permitted assumption by the indemnifying party of the defense of such action,
and approval by the indemnified party of counsel, the indemnifying party will
not be liable to the indemnified party under subsection (a) or (b) for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof (other than reasonable costs of investigation) unless:
(i) the indemnified party has employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence; (ii) the indemnifying party has employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time;
(iii) the indemnifying party and its counsel fail actively and vigorously to
pursue the defense of the action; or (iv) the indemnifying party authorizes the
employment of counsel for the indemnified party at the expense of the
indemnifying party. No indemnifying party will be liable to an indemnified party
for any settlement of any action or claim without the consent of the
indemnifying party, and no indemnifying party may unreasonably withhold its
consent to any such settlement. No indemnifying party will consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to the
indemnified party of a release from all liability with respect to such claim or
litigation.
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(d) If the indemnification provided for in subsection (a) or (b) of
this Section is held by a court of competent jurisdiction to be unavailable to a
party to be indemnified with respect to any claims, actions, demands, losses,
damages, liabilities, costs or expenses referred to therein, then each
indemnifying party under any such subsection, in lieu of indemnifying such
indemnified party thereunder, agrees to contribute to the amount paid or payable
by such indemnified party as a result of such claims, actions, demands, losses,
damages, liabilities, costs 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 resulted in such claims, actions, demands, losses, damages, liabilities,
costs or expenses, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party will 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 the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, the amount any Holder of Registrable Securities
will be obligated to contribute pursuant to this subsection will be limited to
an amount equal to the per share public offering price (less any underwriting
discount and commissions) multiplied by the number of shares of Registrable
Securities sold by such Holder pursuant to the registration statement which
gives rise to such obligation to contribute (less the aggregate amount of any
damages which such Holder has otherwise been required to pay in respect of such
claim, action, demand, loss, damage, liability, cost or expense or any
substantially similar claim, action, demand, loss, damage, liability, cost or
expense arising from the sale of such Registrable Securities). No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution hereunder from any person who
was not guilty of such fraudulent misrepresentation.
SECTION 8. REPORTING REQUIREMENTS UNDER EXCHANGE ACT. The Company will
maintain the effectiveness of its registration under Section 12 of the Exchange
Act and timely file (whether or not it is then required to do so) such
information, documents and reports as the Commission may require or prescribe
under Section 15(d) of the Exchange Act. The Company will, forthwith upon
written request, furnish to any Holder of Registrable Securities a written
statement by the Company that it has complied with such reporting requirements.
In addition, the Company will take such other measures and file such other
information, documents and reports, as may be required of it hereafter by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any similar exemptive provision hereafter in effect).
SECTION 9. HOLDER INFORMATION. The rights of each Holder of Registrable
Securities to participate in any registration to be effected pursuant to this
Agreement is subject to such Holder furnishing the Company with such information
with respect to such Holder and the distribution of such Registrable Securities
as the Company may from time to time reasonably request and as may be required
by law or by the Commission in connection therewith, and each Holder of
Registrable Securities as to which any registration is to be effected pursuant
to this Agreement shall furnish the Company with such information.
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SECTION 10. SUSPENSION OF SALES. Upon receipt of written notice from the
Company that a registration statement or prospectus contains 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 (a
"Misstatement"), each Holder of Registrable Securities shall forthwith
discontinue disposition of Registrable Securities until such Holder has received
copies of the supplemented or amended prospectus that corrects such
Misstatement, or until such Holder is advised in writing by the Company that the
use of the prospectus may be resumed, and, if so directed by the Company, such
Holder shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
SECTION 11. FORMS. All references in this Agreement to particular forms of
registration statements are intended to include, and will be deemed to include,
references to all successor forms which are intended to replace, or to apply to
similar transactions as, the forms herein referenced.
SECTION 12. MISCELLANEOUS.
12.1 Waivers and Amendments. With the written consent of the Holders of a
majority of the Registrable Securities then outstanding, the obligations of the
Company and the rights of the Holders under this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively and
either for a specified period of time or indefinitely), and with the same
consent the Company may enter into a supplementary agreement for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of any supplemental agreement or modifying in
any manner the rights and obligations hereunder of the Holders and the Company;
provided, however, that no such waiver or supplemental agreement may reduce the
aforesaid proportion of Registrable Securities, the Holders of which are
required to consent to any waiver or supplemental agreement, without the consent
of the Holders of all the Registrable Securities; and provided further, and
notwithstanding any provision herein to the contrary, that any such waiver
amendment or supplement that applies only to a particular registration shall
require only the written consent of the Holders of a majority of the Registrable
Securities included in such registration. Upon the effectuation of each such
waiver, consent or agreement of amendment or modification, the Company will give
prompt written notice thereof to the Holders of the Registrable Securities who
have not previously consented thereto in writing. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally or by
course of dealing, but only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, except to the extent provided in this Section 12.1. Specifically, but
without limiting the generality of the foregoing, the failure of any Investor at
any time or times to require performance of any provision hereof by the Company
will not affect the right of any Investor at a later time to enforce the same.
No waiver by any party of the breach of any term or provision contained in this
Agreement, in any one or more instances, will be deemed to be, or
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construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
12.2 Effect of Waiver or Amendment. Each Investor acknowledges that by
operation of Section 12.1 the Holders of a majority of the Registrable
Securities will, subject to the limitations contained in Section 12.1, have the
right and power to diminish or eliminate certain rights of such Investor under
this Agreement.
12.3 Rights of Investors Inter Se. Each Investor has the absolute right to
exercise or refrain from exercising any right or rights which such Investor may
have by reason of this Agreement or any Registrable Security, including, without
limitation, the right to consent to the waiver of any obligation of the Company
under this Agreement and to enter into an agreement with the Company for the
purpose of modifying this Agreement or any agreement effecting any such
modification, and such Investor will not incur any liability to any other
Investor or Investors with respect to exercising or refraining from exercising
any such right or rights.
12.4 Notices. All notices, requests, consents and other communications
required or permitted hereunder will be in writing and will be delivered, or
mailed first class postage prepaid, registered or certified mail,
(a) If to any Investor, addressed to such Investor at its address
shown on Annex A hereto, or at such other address as such Investor may specify
by written notice to the Company; or
(b) If to the Company, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the Company may specify by written
notice to the Investors;
and each such notice, request, consent and other communication will for all
purposes of this Agreement be treated as being effective or having been given
when delivered, if delivered personally, or, if sent by mail, at the earlier of
its actual receipt or three days after the same has been deposited in a
regularly maintained receptacle for the deposit of United States mail, addressed
and postage prepaid as aforesaid.
12.5 Severability. If any one or more of the provisions of this Agreement
or of any agreement entered into pursuant to this Agreement is determined to be
illegal or unenforceable, it is the intention of the parties hereto that all
other provisions of this Agreement and of each other agreement entered into
pursuant to this Agreement should be given effect separately from the provision
or provisions determined to be illegal or unenforceable and not be affected
thereby.
12.6 Parties in Interest. All the terms and provisions of this Agreement
will be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto, whether so expressed or
not and, in particular, will inure to the benefit of and be enforceable by the
Holder or Holders at the time of any registration of Registrable Securities.
Subject to the immediately preceding sentence, this Agreement will not
11
run to the benefit of or be enforceable by any Person other than a party to this
Agreement and its successors and assigns.
12.7 Headings. The headings of the sections, subsections and paragraphs of
this Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
12.8 Entire Agreement. This Agreement constitutes the entire understanding
of the parties hereto and supersedes all prior understanding among such parties.
12.9 Choice of Law. This Agreement and any and all matters related to or
arising under this Agreement shall be governed by the internal laws of the State
of Michigan, regardless of any provisions on choice of or conflicts of law.
12.10 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts will be deemed an original, will be construed together and will
constitute one and the same instrument.
12.11 Assignment of Registration Rights. The rights of the Investors
hereunder, including the right to have the Company register Registrable
Securities pursuant to this Agreement, will be automatically assigned by the
Investors to transferees or assignees of all or any portion of the Registrable
Securities, but only if: (a) the Investor agrees in writing with the transferee
or assignee to assign such rights, and a copy of such agreement is furnished to
the Company within a reasonable time after such assignment; (b) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being transferred
or assigned; (c) after such transfer or assignment the further disposition of
such securities by the transferee or assignee is restricted under the Securities
Act and applicable state securities laws; (d) at or before the time the Company
received the written notice contemplated by clause (b) of this sentence, the
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions contained herein; and (e) the transferee is an "accredited
investor" or a "qualified institutional buyer," as each such term is defined,
respectively, in Rule 501 of Regulation D and Rule 144A, both promulgated under
the Securities Act.
(Signature page follows)
12
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed personally or by a duly authorized representative thereof as of
the day and year first above written.
NORTH COUNTRY FINANCIAL CORPORATION ______________________________________
Printed Name of Investor
By: ___________________________________ By: _________________________________
Name: _____________________________ Name: ____________________________
Title: ____________________________ Title: ___________________________
13
ANNEX A
[LIST OF INVESTORS]
