Exhibit 10(m)
GOLD BANC CORPORATION, INC.
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of December 10, 1998, by and among Gold Banc
Corporation, Inc., a Kansas corporation ("Gold") , and the affiliates of
Citizens Bancorporation, Inc. ("Citizens") who are identified on the signature
page to this Agreement (each an "Affiliate" for purposes hereof and,
collectively, the "Affiliates").
WHEREAS, pursuant to that certain Amended and Restated Agreement and
Plan of Reorganization entered into by and among Gold, Gold Banc Acquisition
Corporation IX, Inc., a wholly owned subsidiary of Gold, and Citizens dated as
of October 5, 1998 (the "Merger Agreement"), each share of the issued and
outstanding capital stock of Citizens was converted into or exchanged for common
stock of Gold, par value of $1.00 per share ("Common Stock"), registered on Form
S 4 (the "S 4 Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), resulting in the issuance of an aggregate of
3,969,598 shares of Common Stock (the "Merger Shares"); and
WHEREAS, the Merger Shares have been registered on the S 4 Registration
Statement for issuance pursuant to the Merger Agreement in accordance with Rule
145 ("Rule 145") promulgated by the Securities and Exchange Commission (the
"SEC") under the Securities Act, with the result that the Merger Shares received
by Affiliates are eligible for resale without registration under the Securities
Act in compliance with the conditions set forth in Rule 145(d); and
WHEREAS, Gold desires to register the Merger Shares received by
Affiliates for resale in order to provide additional liquidity during the period
that the conditions of Rule 145(d) continue to apply to such shares; and
WHEREAS, concurrently with the execution of this Agreement the
Affiliates are exercising their demand registration rights and the Company has
agreed to register the Merger Shares received by Affiliates for resale as
described in this Agreement (the "Requested Registration").
NOW, THEREFORE, in consideration of the mutual covenants, conditions,
and agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is hereby
agreed as follows:
Section 1. Definitions. The definitions set forth in the Merger
Agreement will apply to terms used in this Agreement. In addition, the
following terms shall have the following meanings:
(a) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal statute and the rules and
regulations thereunder, all as the same shall be in effect at the time.
(b) "Register," "registered" and "registration" refers 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, and compliance
with applicable state securities laws of such states in which
Affiliates notify Gold of their intention to offer Registrable
Securities.
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(c) "Registrable Securities" means all of the following to the
extent the same have not been sold to the public (i) any and all Merger
Shares issued to Affiliates pursuant to the Merger Agreement; or (ii)
stock issued in respect of stock referred to in (i) above in any
reorganization; or (iii) stock issued in respect of the stock referred
to in (i) or (ii) as a result of a stock split, stock dividend,
recapitalization or combination. Notwithstanding the foregoing,
Registrable Securities shall not include otherwise Registrable
Securities (i) sold to or through a broker in a transaction pursuant to
Rule 145(d) or otherwise 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
thereto, if any, are removed upon the consummation of such sale, or
(ii) as to which the registration rights have been terminated pursuant
to this Agreement.
(d) "Rule 144" means Rule 144 under the Securities Act or any
successor or similar rule as may be enacted by the SEC from time to
time.
Section 2. Registration. Upon execution of this Agreement, Gold shall
use its reasonable efforts to register the Registrable Securities for resale on
or before the expiration date of the pooling transfer restrictions outlined in
subparagraph E of the Affiliates Letters; provided, however, that Gold shall not
be obligated to register the Registrable Securities in any particular state in
which Gold would be required to: (i) qualify to do business as a foreign
corporation and where it would not otherwise be required to so qualify, (ii)
subject itself to taxation in any such jurisdiction, or (iii) execute a general
consent to service of process in any such jurisdiction.
The registration of the Registrable Securities pursuant to this
Agreement shall not relieve the Affiliates of their respective obligations
pursuant to subparagraph E of the Affiliate Letters.
Section 3. Expenses of Registration. In addition to the fees and
expenses contemplated by Section 4 hereof, all expenses incurred in connection
with the registration pursuant to Section 2 hereof, including without limitation
all registration, filing and qualification fees, printing expenses, fees and
disbursements of counsel for Gold, and expenses of any special audits of Gold's
financial statements incidental to or required by such registration, shall be
borne by Gold, except that Gold shall not be required to pay (a) any fees and
expenses in excess of $1,500.00 (per amendment or supplement) in order to amend
or supplement the registration statement or prospectus to reflect donees or
pledges pursuant to Section 4(b) and (b) any underwriters' fees, discounts or
commissions relating to the sale of the Registrable Securities. Gold shall not,
under any circumstances, be required in connection with a registration
hereunder, to (x) conduct any road shows or similar sales efforts for the
Affiliates, (y) pay any expenses to Affiliates for any road shows or similar
sales efforts, or (z) pay any fees and disbursements of counsel(s) for the
Affiliates.
Section 4. Registration Procedures. In the case of the registration
effected by Gold pursuant to this Agreement, Gold will keep each Affiliate
advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense, Gold will use reasonable efforts to:
(a) keep such registration pursuant to Section 2 continuously
effective for such reasonable period as necessary to permit the
Affiliates to complete the distribution in the manner requested by the
Affiliates and described in the registration statement relating
thereto, but in no event beyond the date that is one year from the
Closing Date of the Merger;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act including any supplement or amendment required to
name donees or pledgees of Affiliates, and to keep such registration
statement effective for the applicable period of time specified in
Section 4(a) above;
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(c) furnish such number of prospectuses and other documents
incident thereto as an Affiliate from time to time may reasonably
request and assist the Affiliates in satisfying their prospectus
delivery obligations by furnishing to any national securities exchange,
including the National Association of Securities Dealers Automated
Quotation National market System ("NASDAQ"), on which the Registrable
Securities are then listed, copies of the prospectus and each amendment
or supplement thereto in accordance with Rule 153 under the Securities
Act (or any comparable rule then in existence);
(d) obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting of any
suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction;
(e) subject to Section 2(b), register or qualify such
Registrable Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions as any Affiliate reasonably requires,
and keep such registration or qualification effective for the
applicable period specified in Section 4(a) above;
(f) cause all Registrable Securities covered by such
registrations to be listed on NASDAQ;
(g) notify each Affiliate promptly of any request by the SEC
for the amending or supplementing of the registration statement or
prospectus or for additional information;
(h) advise each Affiliate, after Gold receives notice or
obtains knowledge of the issuance of any order by the SEC suspending
the effectiveness of the registration statement or amendment thereto or
of the initiation or threatening of any proceeding for that purpose,
and promptly use reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal promptly if such stop order should be
issued;
(i) use its best efforts to timely file with the SEC all of
the reports it is required to file under the Exchange Act as a
prerequisite to availability of Form S 3;
(j) notify each Holder, at any time a prospectus covered by
such registration statement is required to be delivered under the
Securities Act, of the happening of any event of which it has knowledge
as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing; and
(k) take such other actions as shall be requested by any
Affiliate that is reasonably necessary to obtain effectiveness of the
registration statement.
Section 5. Registration Covenants of the Affiliates. In consideration
of the benefits accruing to them pursuant to this Agreement and in addition to
their other obligations set forth in this Agreement, each Affiliate covenants
and agrees to:
(a) cooperate with Gold, its counsel, advisors and other
representatives, and comply with all applicable provisions of law
(including without limitation the prospectus delivery requirements of
the Securities Act and Rule 10b 5 and Regulation M under the Exchange
Act) in connection with any registration effected pursuant to the
provisions of this Agreement;
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(b) promptly provide to Gold, in writing, such information as
Gold or its counsel deems necessary or appropriate for inclusion in the
registration statement, which information, when given, shall be true
and correct in all material respects and shall not omit any information
necessary to make the information furnished not misleading;
(c) execute all questionnaires, custody agreements, powers of
attorney or other documents as Gold may reasonably request;
(d) discontinue sales of Registrable Securities upon
notification of any stop order or suspension of the effectiveness of
the registration statement;
(e) notify Gold immediately upon any material change in the
plan of distribution or other information concerning such Affiliate
described in the prospectus;
(f) discontinue sales of Registrable Securities and use of the
related prospectus following notification by Gold that the registration
statement must be amended or supplemented;
(g) not use any prospectus other than the most recent
prospectus related to the registration statement;
(h) upon presentation of a stock certificate representing
Registrable Securities sold under the registration statement, certify
that the sale was made in accordance with the terms hereof and the plan
of distribution described in the Registration Statement; and
(i) notify Gold of any request by the SEC or any state
securities commission or agency for additional information or for such
registration statement or prospectus to be amended or supplemented.
In the event that any Affiliate fails to comply in any material respect
with its obligations pursuant to Sections 5(a) through (c), any Registrable
Securities held by such Affiliate may be excluded from the registration
statement and all of such Affiliate's rights pursuant to the Agreement shall
terminate. In the even that any Affiliate fails to comply in any material
respect with its obligations pursuant to Sections 5(d) through (i), all of such
Affiliate's rights pursuant to this Agreement shall terminate other than with
respect to Registrable Shares then registered on a Registration Statement.
Section 6. Indemnification.
(a) Gold shall indemnify and hold harmless each Affiliate
against any losses, claims, damages or liabilities, joint or several,
to which such Affiliate may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the registration statement under which such Registrable Securities were
registered under the Securities Act, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement
thereof, 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, or any
violation by Gold of any rule or regulation promulgated under the
Securities Act or any state securities law applicable to Gold and
relating to action or inaction required of Gold in connection with any
such registration, and will reimburse each such Affiliate for any
reasonable legal and any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage,
liability or action; provided, however, that Gold will not be liable in
any such case to the extent that any such claim, loss, damage or
liability arises out of or is based on (i) the failure of any Affiliate
to comply in any material respect with its obligations pursuant to
Sections 5(d) through (i) or
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(ii) any untrue statement or omission based upon information furnished
to or requested by Gold by or from any Affiliate for use therein.
(b) Each Affiliate will, if Registrable Securities held by or
issuable to such Affiliate are included in the securities as to which
such registration is being effected, indemnify and hold harmless Gold,
each of its directors and officers, each person who controls Gold, and
each other Affiliate, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereof) arising out of or based on
(i) the failure of any Affiliate to comply in any material respect with
its obligations pursuant to Sections 5(d) through (i), or (ii) any
untrue statement (or alleged statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse Gold, each person
who controls Gold, such directors or officers, or such Affiliates for
any reasonable legal or any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent
that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with information furnished to or requested by Gold by or
from such Affiliate specifically for use therein; provided, however,
the total amount for which any Affiliate shall be liable under this
Section 6(b) shall not in any event exceed the aggregate proceeds
received by such Affiliate from the sale of Registrable Securities sold
by such Affiliate in such registration.
(c) Each party entitled to indemnification under this Section
6 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claims as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be approved by
the Indemnified Party (whose approval shall not be reasonably
withheld), and the Indemnified Party may participate in such defense at
such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations hereunder, unless such
failure resulted in actual detriment to the Indemnifying Party. No
Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a full and unconditional release
from all liability in respect of such claim or litigation.
(d) If the indemnification provided for in this Section 6 is
held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute the
amount paid or payable by such Indemnified Party as a result of such
loss, liability, claim, damage or expense 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 hand in
connection with the statements or omissions which resulted in such
loss, liability, claim, damage or expense as well as any other relevant
equitable considerations. The relevant fault of the Indemnifying Party
and the Indemnified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Notwithstanding the foregoing, the amount any Affiliate shall
be obligated to contribute pursuant to this Section 6(d) shall be
limited to an amount equal to the proceeds to such Affiliate of the
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Registrable Securities sold pursuant to the registration statement
which gives rise to such obligation to contribute (less the aggregate
amount of any damages which the Affiliate has otherwise been required
to pay in respect of such loss, claim, damage, liability or action or
any substantially similar loss, claim, damage, liability or action
arising from the sale of such Registrable Securities).
(e) The indemnification provided by this Section 6 shall be a
continuing right to indemnification and shall survive the registration
and sale of any securities by any person entitled to indemnification
hereunder and the expiration or termination of this Agreement.
Section 7. Certificate Legends. Within five (5) business days after a
registration statement filed under Section 2 hereof becomes effective, Gold will
notify each Affiliate. Upon receipt of such notice, each Affiliate may return
its certificate representing the Registrable Securities and request that Gold
issue a new certificate in such Affiliate's name free of any restrictive legend
relating to compliance with federal securities laws and Gold shall take all
reasonable steps to do so; provided, however, that Gold shall only be obligated
to remove the legend for that number of Registrable Securities which any
Affiliate represents is being sold pursuant to the registration statement.
Section 8. Termination of Rights. All rights of the Affiliates under
this Agreement shall terminate at 5:00 P.M. Eastern time on the date one year
after the date hereof.
Section 9. Representations and Warranties of Gold. Gold represents and
warrants to the Affiliates as follows:
(a) The execution, delivery and performance of this Agreement
by Gold have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other
governmental agency, the Amended and Restated Articles of Incorporation
or the Amended and Restated Bylaws of Gold or any provision of any
indenture, agreement or other instrument to which it or any of its
properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under
any such indenture, agreement or other instrument or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of Gold.
(b) This Agreement has been duly executed and delivered by
Gold and constitutes the legal, valid and binding obligation of Gold,
enforceable in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance and
moratorium laws and other laws of general application affecting
enforcement of creditors' rights generally and (ii) the availability of
equitable remedies as such remedies may be limited by equitable
principles of general applicability (regardless of whether enforcement
is sought in a proceeding in equity or at law).
Section 10. Miscellaneous.
(a) Amendments. This Agreement may be amended only by a
writing signed by Gold and all of the Affiliates.
(b) Counterparts. This Agreement may be executed in any number
of counterparts, all of which shall constitute a single instrument.
(c) Notices, Etc. All notices and other communications
required or permitted hereunder shall be in writing and may be sent by
facsimile transmission (with written confirmation of successful
transmission), by registered or certified mail, postage prepaid, or
delivered by hand or by messenger, addressed (a) if to an Affiliate, at
such Affiliate's address set forth on the books of Gold, or at such
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other address as such Affiliate shall have furnished to Gold in writing
pursuant to this Section, or (b) if to Gold, to Gold's then current
executive office address, or at such other address as Gold shall have
furnished to the Affiliates pursuant to this Section. Each such notice
or other communication shall for all purposes of this Agreement be
treated as effective or having been given when delivered if delivered
personally, or, if sent by registered or certified mail or facsimile
transmission, upon its receipt.
(e) Severability. If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall attach only to such provision and
shall not in any manner affect or render illegal, invalid or
unenforceable any other provision of this Agreement, and this Agreement
shall be carried out as if any such illegal, invalid or unenforceable
provision were not contained herein.
(f) Dilution. If, and as often as, there is any change in the
Common Stock of Gold by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common
Stock of Gold as so changed.
(g) Specific Performance. The parties hereto acknowledge that
they will be irreparably damaged in the event that this Agreement is
not specifically enforced. Upon any breach threatened, breach of the
terms, covenants or conditions of this Agreement by any party hereto,
the other party shall, in addition to all other remedies, be entitled
to a temporary permanent injunction, without showing any actual damage
or posting any bond, or a decree for specific performance, in
accordance with the provisions hereof.
(h) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Kansas without regard to
principles of conflict of law.
(i) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any Affiliate
without the prior written consent of Gold; provided, however, this
Agreement may be assigned by an Affiliate to any donee or pledgee o the
Registrable Securities if at the time of assignment Gold is given
written notice by the Affiliate of said assignment, stating the name
and address of the donee or pledgee. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
(j) Entire Agreement. This Agreement, the Affiliate Letters
delivered pursuant to the Merger Agreement and the other documents
referred to herein and therein contain the entire understanding of the
parties with respect to the subject matter hereof. There are no
restrictions, promises, warranties, covenants or undertakings
concerning the subject matter other than those expressly set forth in
this Agreement and such Affiliate Letters. This Agreement and the
Affiliate Letters supercede all prior negotiations, agreements and
undertakings between the parties with respect to such subject matter.
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IN WITNESS HEREOF, the parties hereto have duly executed this Agreement
as of the date first written above.
GOLD BANC CORPORATION, INC. AFFILIATES
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxx
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Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxx
President and Chief Executive Officer P. O. Xxx 0000
Xxxxx, XX 00000
Facsimile:
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/s/ Xxx Xxxxxx
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Xxx Xxxxxx
P. O. Xxx 0000
Xxxxx, XX 00000
Facsimile:
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/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
P. O. Xxx 0000
Xxxxx, XX 00000
Facsimile:
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/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
P. O. Xxx 0000
Xxxxx, XX 00000
Facsimile:
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/s/ Xxxx Xxxxx
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Xxxx Xxxxx
0000 X. Xxxxxxx
Xxxxx, XX 00000
Facsimile:
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/s/ X.X. Xxxxxxx
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X. X. Xxxxxxx
0000 X. Xxxxxxx
Xxxxx, XX 00000
Facsimile:
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/s/ Xxxx Xxxxx, Trustee
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Xxxx Xxxxx, Trustee of the
Xxxx X. Xxxxx Revocable
Family Trust #1
0000 X. Xxxxxxx
Xxxxx, XX 00000
Facsimile:
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/s/ Xxxx Xxxxx, Trustee
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Xxxx Xxxxx, Trustee of the
Xxxx X. Xxxxx Revocable
Family Trust #0
0000 X. Xxxxxxx
Xxxxx, XX 00000
Facsimile:
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XXXXXXX ENTERPRISES LLC
/s/ X.X. Xxxxxxx
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X. X. Xxxxxxx, Member
0000 X. Xxxxxxx
Xxxxx, XX 00000
Facsimile:
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