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Exhibit 10.11
REGISTRATION RIGHTS AGREEMENT
(TOHI SHAREHOLDERS)
THIS REGISTRATION RIGHTS AGREEMENT (the " Agreement ") is
made as of November 15, 2006 (the " Effective Date "), by
and among Treaty Oak Bancorp, Inc., a Texas corporation (the "
Company "), and the Company’s shareholders set forth
on the signature page hereto (each a " Common Holder " and
collectively the " Common Holders ").
R E C I T A L S
WHEREAS, the Company intends to issue shares of its Common
Stock, par value $0.01 per share (the "Common Stock"), to the
Common Holders in connection with the consummation of the
transaction contemplated by that certain Agreement and Plan of
Merger by and between the Company and the Treaty Oak Holdings,
Inc., a Texas corporation (the "Merger Agreement"); and
WHEREAS, it is a condition precedent to the consummation of the
transaction contemplated by the Merger Agreement that the Company
provide for the rights set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereto further agree as
follows:
1.
Registration Rights . The Company covenants and agrees
as follows:
1.1.
Definitions . For purposes of this Agreement:
(a)
The term " 1934 Act " shall mean the Securities Exchange Act
of 1934, as amended.
(b)
The term " Act " means the Securities Act of 1933, as
amended.
(c)
The term " Form S-3 " means such form under the Act as in
effect on the date hereof or any registration form under the Act
subsequently adopted by the SEC that permits inclusion or
incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
(d)
The term " Holder " means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.8 .
(e)
The terms " register ," " registered ," and "
registration " refer to a registration effected by preparing
and filing a registration statement or similar document in
compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(f)
The term " Registrable Securities " means (i) the
Common Stock, issued to the Common Holders upon the consummation of
the Merger, (ii) any Common Stock of the Company issued as a
dividend or other distribution with respect to, or in exchange for,
or in
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replacement of, the shares referenced in
(i) above, and (iii) any shares of Common Stock or other
securities issued or issuable in respect of the shares described in
(i) or (ii) upon any stock split, stock dividend, recapitalization
or similar event; provided , however , that the term
" Registrable Securities " shall exclude in all cases any
Registrable Securities sold by a person in a transaction in which
such person’s rights under this Section 1 are not
assigned and provided further that shares of Common Stock or other
securities shall only be treated as Registrable Securities if and
so long as they have not been sold to or through a broker or dealer
or underwriter in a public distribution or a public securities
transaction.
(g)
The number of shares of " Registrable Securities then
outstanding " shall be determined by the number of outstanding
Registrable Securities held of record by the Holders.
(h)
The term " Rule 144 " shall mean Rule 144 as promulgated by
the SEC under the Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the
SEC.
(i)
The term " Rule 145 " shall mean Rule 145 as promulgated by
the SEC under the Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the
SEC.
(j)
The term " SEC " shall mean the Securities and Exchange
Commission.
1.2.
Form S-3 Registration . Subject to the conditions of
this Section 1.2 , if the Company shall receive from
the Holders of at least fifty percent (50%) of the Registrable
Securities then outstanding a written request or requests that the
Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company
will:
(a)
promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b)
use its commercially reasonable efforts to effect, as soon as
practicable, such registration and all such qualifications and
compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Holder’s or Holders’ Registrable Securities as are
specified in such request, together with all or such portion of the
Registrable Securities of any other Holder or Holders joining in
such request as are specified in a written request given within
fifteen (15) calendar days of the receipt of the Company’s
notice referred to in subsection 1.2(a) ;
provided , however , that the Company shall not be
obligated to effect any such registration, qualification or
compliance, pursuant to this Section 1.2 :
(i)
if Form S-3 is not available for such offering by the Holders;
(ii)
if the Company shall furnish to the Holders a certificate signed by
the President of the Company stating that in the good faith
judgment of the Board of
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Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such Form S-3
Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than one hundred
twenty (120) calendar days after receipt of the request of the
Holder or Holders under this Section 1.2 ;
provided , however , that the Company shall not
utilize this right more than once in any twelve (12) month
period;
(iii) if
the Company has, within the twelve (12) month period preceding the
date of such request, already effected one (1) registration on Form
S-3 for the Holders pursuant to this Section 1.2 ;
or
(iv) in
any particular jurisdiction in which the Company would be required
to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such
jurisdiction and except as may be required by the Act.
(c)
If the Holders requesting registration pursuant to this
Section 1.2 intend to distribute the Registrable
Securities covered by their request by means of an underwriting,
they shall so advise the Company as part of their request made
pursuant to this Section 1.2 and the Company shall
include such information in the written notice referred to in
subsection 1.2(a) . The underwriter will be
selected by the Company and shall be reasonably acceptable to a
majority in interest of the Holders requesting registration.
In such event, the right of any Holder to include such
Holder’s Registrable Securities in such registration shall be
conditioned upon such Holder’s participation in such
underwriting and the inclusion of such Holder’s Registrable
Securities in the underwriting to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company as provided in
Section 1.3(e) ) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for
such underwriting. Notwithstanding any other provision of
this Section 1.2 , if the underwriter advises the
Holders requesting registration in writing that marketing factors
require a limitation of the number of shares to be underwritten,
then the Holders requesting registration shall so advise all
Holders of Registrable Securities that would otherwise be
underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the Holders
requesting registration, in proportion (as nearly as practicable)
to the amount of Registrable Securities requested by each such
Holder to be included in such underwriting.
(d)
Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt
of the request or requests of the requisite number of
Holders. All expenses incurred in connection with a
registration requested pursuant to this Section 1.2
(other than underwriting discounts and commissions and fees and
disbursements of counsel for the Holders), including (without
limitation) all registration, filing, qualification,
printer’s fees, accounting fees and fees and disbursements of
counsel for the Company, shall be borne by the Company;
provided , however , that the Company shall not be
required to pay for any expenses of any registration proceeding
begun pursuant to Section 1.2 if the registration
request is
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subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such
expenses).
1.3.
Obligations of the Company . Whenever required under
Section 1.2 to affect the registration of any
Registrable Securities, the Company shall use its commercially
reasonable efforts to:
(a)
Prepare and file with the SEC a registration statement on Form S-3
with respect to such Registrable Securities and use its
commercially reasonable efforts to cause such registration
statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for a period of up to
ninety (90) calendar days or any less period of time in the event
the distribution described in the registration statement has been
completed;
(b)
Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with
the provisions of the Act with respect to the disposition of all
securities covered by such registration statement;
(c)
Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may
reasonably request in order to facilitate the disposition of
Registrable Securities owned by them;
(d)
Use commercially reasonable efforts to register and qualify the
securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be
reasonably requested by the Holders, provided that the Company
shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(e)
In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter(s) of such
offering (each Holder participating in such underwriting shall also
enter into and perform its obligations under such an
agreement);
(f)
Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening
of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing; and
(g)
Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the
effective date of such registration.
1.4.
Furnish Information . It shall be a condition
precedent to the obligations of the Company to take any action
pursuant to Section 1.2 with respect to the Registrable
Securities
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of any selling Holder that such Holder shall
furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required by the Company
or the managing underwriters, if any, to effect the registration of
such Holder’s Registrable Securities.
1.5.
Delay of Registration . No Holder shall have any right
to obtain or seek an injunction restraining or otherwise delaying
any such registration as the result of any controversy that might
arise with respect to the interpretation or implementation of this
Section 1 .
1.6.
Indemnificatio
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