1
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
This Agreement is made pursuant to Section 5.7 of the Stock Purchase
Agreement dated as of November ___, 1998 (the "Stock Purchase Agreement"),
between Frontier Adjusters of America, Inc. ("Frontier") and United Financial
Adjusting Company ("UFAC"). Pursuant to the Stock Purchase Agreement, UFAC will
purchase an aggregate of 5,258,513 shares of Frontier's Series A Convertible
Voting Preferred Stock, $.01 par value per share (the "Preferred Shares"). The
Preferred Shares will be convertible into shares of common stock, par value $.01
per share, of Frontier (the "Common Stock"). In order to induce Purchaser to
consummate the transactions contemplated by the Stock Purchase Agreement, and in
further consideration therefor, Frontier has agreed to execute and deliver this
Agreement and provide the registration rights set forth in this Agreement.
Accordingly, it is hereby agreed as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in the Stock Purchase Agreement. For
purposes of this Agreement, the following terms shall have the following
meanings:
"EFFECTIVE PERIOD" shall mean, for purposes of this Agreement,
a period commencing on the date of this Agreement and ending on the date as of
which all Registrable Securities cease to be Registrable Securities.
"REGISTRABLE SECURITIES" means collectively, (i) the Preferred
Shares, (ii) the shares of Common Stock issued upon conversion of the Preferred
Shares purchased by UFAC pursuant to the Stock Purchase Agreement (the "Shares")
and (iii) any securities issued or distributed in respect of any Preferred
Shares or Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, reorganization, merger, consolidation
or otherwise.
"REGISTRATION EXPENSES" shall mean any and all expenses
incident to performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and securities exchange registration and filing fees,
(ii) all fees and expenses of complying with state securities or blue sky laws
(including fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange pursuant to paragraph 5(h), (v) the fees and disbursements of counsel
for Frontier and of its independent public accountants, including the expenses
of any incident to such performance and compliance, and (vi) any fees and
disbursements of underwriters customarily paid by the issuers or sellers of
securities, and the reasonable fees and expenses of any special experts retained
in connection with the requested registration, but excluding underwriting
discounts and commissions and transfer taxes, if any.
2
"RELATED SECURITIES" means any securities of Frontier similar
or identical to any of the Registrable Securities, including, without
limitation, Common Stock and all options, warrants and other securities
convertible into, or exchangeable or exercisable for, Common Stock.
2. SECURITIES SUBJECT TO THIS AGREEMENT. For the purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities when (i) a
registration statement covering such Registrable Securities has been declared
effective under the Securities Act (as defined below) and they have been
disposed of pursuant to such effective registration statement, (ii) they are
distributed to the public pursuant to Rule 144 (or any similar provision then in
force) under the Securities Act of 1933, as amended (the "Securities Act"),
(iii) they shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been delivered by
Frontier and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any state securities or blue
sky law then in force, or (iv) they shall have ceased to be outstanding.
3. DEMAND REGISTRATION RIGHTS.
(a) RIGHT TO DEMAND. At any time during the Effective
Period, UFAC may make a written request to Frontier for registration with the
Securities and Exchange Commission (the "SEC") under and in accordance with the
provisions of the Securities Act, and under the securities laws of the states
designated by UFAC, of all or part of its Registrable Securities. Upon receipt
of each such request, Frontier shall use its best efforts to effect such
registration as required pursuant to Section 5 hereof (a "Demand Registration");
PROVIDED, HOWEVER, that (i) the aggregate number of Registrable Securities
requested to be so registered shall have a market value (calculated at then
current market prices) of at least $250,000 and (ii) no Demand Registration may
be requested after the end of the Effective Period and PROVIDED, FURTHER, that
Frontier shall not be obligated to file a registration statement relating to any
registration request under this Section 3, within a period of six months after
the effective date of any other registration statement relating to (A) any
registration request under this Section 3 or (B) any registration effected under
Section 4. All requests made pursuant to this paragraph 3(a) will specify the
aggregate number of Registrable Securities to be registered and will also
specify the intended methods of disposition thereof.
(b) Frontier shall be entitled to postpone the filing of
any registration statement otherwise required to be prepared and filed by
Frontier pursuant to this Section 3, for a reasonable period of time, but not in
excess of 30 days, if the board of directors of Frontier determines in its
reasonable judgment and in good faith that the registration and distribution of
the Registrable Securities would materially interfere with any pending
financing, acquisition or corporate reorganization involving Frontier or any of
its subsidiaries or would require premature disclosure thereof and promptly
gives UFAC written notice of such determination, containing a general statement
of the reasons for such postponement and an approximation of the anticipated
delay. If Frontier shall so postpone the filing of a registration statement,
UFAC shall have the right to withdraw the request for registration by giving
written notice to Frontier within 20 days after receipt of the notice of
postponement (and, in the event of such withdrawal, such request shall not be
counted for purposes of determining the number of requests for registration to
which UFAC is entitled pursuant to paragraph (c) of this Section 3).
--------------------------------------------------------------------------------
Page 2
3
(c) NUMBER OF DEMAND REGISTRATIONS. UFAC shall be entitled
to a maximum of one Demand Registrations during the Effective Period. Frontier
shall not be deemed to have effected a Demand Registration unless and until such
Demand Registration is declared effective under the Securities Act. If a Demand
Registration is effected following a request from UFAC, then the individuals
named in Section 6.2(e) of the Stock Purchase Agreement shall be entitled to
register any shares of Common Stock not then covered by an effective
Registration Statement on Form S-8 in such Demand Registration.
(d) PRIORITY ON DEMAND REGISTRATIONS. If the managing
underwriter or underwriters of a Demand Registration advise Frontier in writing
that in its or their opinion the number of securities proposed to be sold in
such Demand Registration exceeds the number which can be sold in such offering,
Frontier will include in such registration only the number of securities that in
the opinion of such underwriter or underwriters can be sold.
(e) SELECTION OF UNDERWRITERS. If any offering pursuant to
a Demand Registration is an underwritten offering, Frontier will select a
managing underwriter or underwriters to administer the offering, provided such
managing underwriter or underwriters shall be reasonably satisfactory to UFAC.
4. PIGGY-BACK REGISTRATION. If at any time after the date of issuance of any
Registrable Securities and prior to the end of the Effective Period, Frontier
proposes to file a registration statement under the Securities Act with respect
to an offering by Frontier for its own account or for the account of others of
any class of equity security of Frontier (or any options, warrants or other
securities convertible into, or exchangeable or exercisable for, such equity
securities) to be offered for cash (other than in connection with the
registration of securities issuable pursuant to an employee stock option, stock
purchase or similar plan or pursuant to a merger, exchange offer or a
transaction of the type specified in Rule 145(a) under the Securities Act), then
Frontier shall in each case give written notice of such proposed filing to UFAC
at least 20 days before the filing date, and such notice shall offer UFAC the
opportunity to register such number of Registrable Securities as UFAC may
request (a "Piggy-Back Registration"). If such offer is accepted by written
notice to Frontier within 15 days of UFAC's receipt of the written notice
provided for in the preceding sentence, Frontier shall use its best efforts to
cause such Registrable Securities to be included in such offering on the same
terms and conditions as the corresponding securities of Frontier included
therein, PROVIDED that (i) if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, Frontier
shall determine for any reason not to proceed with the proposed registration,
Frontier may, at its election, give written notice of such determination to UFAC
and thereupon shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith), and (ii) if such
registration involves an underwritten offering by Frontier (underwritten, at
least in part, by Persons who are not Affiliates of Frontier or UFAC), subject
to the following sentence, UFAC must sell its Registrable Securities to such
underwriters who shall have been selected by Frontier on the same terms and
conditions as apply to Frontier, with such differences, including any with
respect to indemnification and contribution, as may be customary or appropriate
in combined primary and secondary offerings. If a proposed registration pursuant
to this Section 4 involves such an underwritten public offering, UFAC may elect
in writing, prior to the effective date of the
--------------------------------------------------------------------------------
Page 3
4
registration statement filed in connection with such registration, to withdraw
such request and not to have its securities registered in connection with such
registration. Notwithstanding the foregoing, if the managing underwriter or
underwriters of a proposed underwritten offering advise Frontier in writing that
in their opinion the total amount or kind of securities that UFAC has requested
to be included in such offering, when added to those securities then proposed to
be offered by Frontier and any other participants in such offering, would
adversely affect the success of such offering, then the amount of securities to
be offered for the accounts of UFAC, Frontier and such other participants in the
offering shall be reduced proportionately to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing underwriter or underwriters.
5. REGISTRATION PROCEDURES. If and whenever Frontier is required to use its
best efforts to effect or cause the registration of any Registrable Securities
under the Securities Act as provided in this Agreement, Frontier will, as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement
with respect to such Registrable Securities on any form for
which Frontier then qualifies and which counsel for Frontier
shall deem appropriate, and which form shall be available for
the sale of the Registrable Securities in accordance with the
intended methods of distribution thereof, and use its best
efforts to cause such registration statement to become and
remain effective; PROVIDED, HOWEVER, that Frontier may
discontinue any registration of its securities which is being
effected pursuant to Section 3 at any time prior to the
effective date of the registration statement relating thereto;
(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 keep such
registration statement effective for a period of 180 days or
such lesser period of time as Frontier or UFAC may be required
under the Securities Act to deliver a prospectus in connection
with any sale of Registrable Securities, and to 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 by UFAC set forth in such registration
statement; PROVIDED, that before filing a registration
statement or prospectus, or any amendments or supplements
thereto, Frontier will furnish to the UFAC and its counsel not
less than two business days prior to filing, copies of all
documents proposed to be filed;
(c) furnish to UFAC such number of copies of such
registration statement and of each amendment and supplement
thereto (in each case including all exhibits), such number of
copies of the prospectus and any prospectus supplement (as
applicable), in conformity with the requirements of the
Securities Act, and such other documents as UFAC may
reasonably request in order to facilitate the disposition of
the Registrable Securities by UFAC;
(d) use its best efforts to register or qualify such
Registrable Securities covered by such registration statement
under such other securities or blue sky laws of such
jurisdictions as UFAC shall reasonably request, and do any and
all
--------------------------------------------------------------------------------
Page 4
5
other acts and things which may be reasonably necessary or
advisable to enable UFAC to consummate the disposition in such
jurisdictions of the Registrable Securities owned by UFAC,
except that Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation
in any jurisdiction where, but for the requirements of this
paragraph 5(d), it would not be obligated to be so qualified,
to subject itself to taxation in any such jurisdiction, or to
consent to general service of process in any such
jurisdiction;
(e) use its best efforts to cause such Registrable
Securities covered by such registration statement to be
registered with or approved by such other governmental
agencies or authorities as may be necessary to enable UFAC to
consummate the disposition of such Registrable Securities;
(f) notify UFAC at any time when a prospectus relating
thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in paragraph 5(b), of
Frontier's becoming aware that 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 light of the
circumstances then existing, and at the request of UFAC,
prepare, file with the SEC and all applicable state securities
authorities and furnish to UFAC a reasonable number of copies
of an amended or supplemental prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an
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 not misleading in light of the
circumstances then existing;
(g) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make
available to UFAC, as soon as reasonably practicable (but not
more than eighteen months) after the effective date of the
registration statement, an earnings statement which shall
satisfy the provisions of Section 11(a) of the Securities Act
and the rules and regulations promulgated thereunder;
(h) use its best efforts to cause all such Registrable
Securities to be listed on any securities exchange on which
the Common Stock is then listed, if such Registrable
Securities are not already so listed and if such listing is
then permitted under the rules of such exchange, and to
provide a transfer agent and registrar for such Registrable
Securities covered by such registration statement no later
than the effective date of such registration statement;
(i) use its best efforts to obtain a "cold comfort" letter
or letters from Frontier's independent public accountants in
customary form in a timely manner in order to facilitate the
sale of the Registrable Securities;
(j) cooperate with UFAC, the managing underwriter or
underwriters, if any, and any transfer agent to facilitate the
timely preparation and delivery of
--------------------------------------------------------------------------------
Page 5
6
certificates (not bearing any restrictive legends, unless
required by law) representing the securities to be sold under
such registration statement, and enable such securities to be
in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or UFAC may
request; and
(k) make available for inspection by UFAC, any underwriter
participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent
retained by UFAC or such underwriter (collectively, the
"Inspectors"), all financial and other records and other
information, pertinent corporate documents and properties of
any of Frontier and its subsidiaries and affiliates
(collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility; PROVIDED, HOWEVER, that the Records that
Frontier determines, in good faith, to be confidential and
which it notifies the Inspectors in writing are confidential
shall not be disclosed to any Inspector unless such Inspector
signs a confidentiality agreement reasonably satisfactory to
Frontier. UFAC agrees that it will, promptly after learning
that disclosure of such Records is sought in a court having
jurisdiction, give notice to Frontier and allow Frontier, at
Frontiers expense, to undertake appropriate action to prevent
disclosure of such Records.
Frontier may require UFAC to furnish Frontier with such
information regarding UFAC and pertinent to the disclosure requirements relating
to the registration and the distribution of such securities as Frontier may from
time to time reasonably request in writing.
UFAC agrees that, upon receipt of any notice from Frontier of
the happening of any event of the kind described in paragraph 5(f), UFAC will
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until UFAC's receipt
of the copies of the supplemented or amended prospectus contemplated by
paragraph 5(f), and, if so directed by Frontier, UFAC will deliver to Frontier
(at Frontier's expense) all copies, other than permanent file copies then in
UFAC's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event Frontier shall give
any such notice, the period mentioned in paragraph 5(b) shall be extended by the
number of days during the period from the date of the giving of such notice
pursuant to paragraph 5(f) and through the date when each seller of Registrable
Securities covered by such registration statement shall have received the copies
of the supplemented or amended prospectus contemplated by paragraph 5(f).
6. REGISTRATION EXPENSES. Frontier will pay all Registration Expenses in
connection with the first registration of Registrable Securities pursuant to
Section 3 or 4 upon the written request of UFAC, and UFAC shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of UFAC's Registrable Securities pursuant to a
registration statement effected pursuant to such Sections. All expenses for any
subsequent registrations of Registrable Securities pursuant to either Section 3
or 4 shall be paid PRO RATA by all Persons (including UFAC and Frontier)
participating in such registration on the basis of the relative number of shares
of Common Stock of each such Person included in such registration.
--------------------------------------------------------------------------------
Page 6
7
7. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY FRONTIER. Frontier agrees to
indemnify UFAC, its officers and directors and each Person who controls UFAC
(within the meaning of the Securities Act), and any agent or investment adviser
thereof against all losses, claims, damages, liabilities and expenses (including
reasonable attorneys' fees and expenses of investigation) incurred by such party
pursuant to any actual or threatened action, suit, proceeding or investigation
arising out of or based upon (i) any untrue or alleged untrue statement of
material fact contained in any registration statement, any prospectus or
preliminary prospectus, or any amendment or supplement to any of the foregoing
or (ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of a prospectus or a preliminary prospectus, in light of the
circumstances then existing) not misleading, except in each case insofar as the
same arise out of or are based upon, any such untrue statement or omission made
in reliance on and in conformity with information with respect to such
indemnified party furnished in writing to Frontier by such indemnified party or
its counsel expressly for use therein. In connection with an underwritten
offering, Frontier will indemnify the underwriters thereof, 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 UFAC. Notwithstanding the foregoing provisions of this
paragraph 7(a), Frontier will not be liable to UFAC, any Person who participates
as an underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls UFAC or underwriter (within the meaning of the
Securities Act), under the indemnity agreement in this paragraph 7(a) with
respect to any preliminary prospectus or the final prospectus or the final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, claim, damage or liability of UFAC, underwriter or controlling
Person results from the fact that UFAC or underwriter sold Registrable
Securities to a Person to whom there was not sent or given (or deemed to be sent
or given) 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, required to be sent or given in accordance with any applicable law or
regulation, if Frontier has previously furnished copies thereof to UFAC or
underwriter.
(b) INDEMNIFICATION BY UFAC. In connection with any
registration statement in which UFAC is participating, UFAC will furnish to
Frontier in writing such information, including with respect to the name,
address and the amount of Registrable Securities held by UFAC, as Frontier
reasonably requests for use in such registration statement or the related
prospectus and agrees to indemnify and hold harmless (in the same manner and to
the same extent as set forth in paragraph 7(a)) Frontier, any underwriter, as
the case may be, and any of their respective affiliates, directors, officers and
controlling Persons, (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of a material fact or any omission or alleged omission
of a material fact required to be stated in such registration statement or
prospectus or any amendment or supplement to either of them or necessary to make
the statements therein (in the case of a prospectus, in the light of the
circumstances then existing) not misleading, but only to the extent that any
such untrue statement or omission is made in reliance on and in conformity with
information with respect to UFAC furnished in writing to Frontier by UFAC or its
counsel expressly for use therein.
--------------------------------------------------------------------------------
Page 7
8
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such indemnified party of any
written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such indemnified party
may claim indemnification or contribution pursuant to this Agreement. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its decision as to whether or not to assume the defense
thereof (which notice must be given to such indemnified party within five days
of the indemnifying party's receipt of notice of commencement of any action],
the indemnifying party shall not be liable to such indemnified party under these
indemnification provisions for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation, unless in the reasonable judgment of any indemnified party a
conflict of interest is likely to exist between such indemnified party and the
indemnifying party or any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels. The indemnifying party will
not be subject to any liability for any settlement made without its consent
(which will not be unreasonably withheld or delayed).
(d) CONTRIBUTION. If the indemnification from the
indemnifying party provided for in this Section 7 is unavailable to an
indemnified party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified party in
connection with the actions which resulted in such losses, claims, damages,
liabilities and expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in paragraph 7(c), any legal and other fees and expenses
reasonably incurred by such indemnified party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this paragraph 7(d) were determined by PRO
RATA allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this paragraph 7(d), no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by it and
distributed to the public were
--------------------------------------------------------------------------------
Page 8
9
offered to the public exceeds the amount of any damages which such underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and UFAC shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of UFAC were offered to the public (net of all
underwriting discounts and commissions) exceeds the amount of any damages which
UFAC has otherwise been required to pay by reason of such untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in paragraph 7(a) or (b), as the case may be, without regard to the
relative fault of said indemnifying parties or indemnified party or any other
equitable consideration provided for in this paragraph 7(d).
(e) The provisions of this Section 7 shall be applicable in
respect of each registration pursuant to this Agreement, shall be in addition to
any liability which any party may have to any other party and shall survive any
termination of this Agreement.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. UFAC may not participate in
any underwritten registration hereunder unless UFAC (a) agrees to sell UFAC's
securities on the basis provided in underwriting arrangements approved by
Frontier and UFAC and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. RULE 144. Frontier covenants that it will file all reports required to be
filed by it under the Securities Act and the Securities Exchange Act of 1934, as
amended, and the rules and regulations adopted by the Commission thereunder (or,
if Frontier is not required to file such reports, it will, upon the request of
UFAC, make publicly available other information so long as necessary to permit
sales under Rule 144 under the Securities Act), and it will take such further
action as UFAC may reasonably request, all to the extent required from time to
time to enable UFAC to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the Commission. Upon the
request UFAC, Frontier will deliver to UFAC a written statement as to whether it
has complied with such requirements.
10. MISCELLANEOUS.
(a) REMEDIES. UFAC, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement.
(b) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement 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 both parties.
--------------------------------------------------------------------------------
Page 9
10
(c) NOTICES. All Notices and other communications provided
for or permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by telecopier, registered or
certified mail (return receipt requested), postage prepaid, or courier
guaranteeing next day delivery to the parties at the following addresses (or at
such other address for any party as shall be specified by like notice, provided
that notices of a change of address shall be effective only upon receipt
thereof). Notices delivered personally shall be effective upon receipt, notices
sent by mail shall be effective three days after mailing, notices sent by
telecopier shall be effective when receipt is acknowledged, and notices sent by
courier guaranteeing next day delivery shall be effective on the next business
day after timely delivery to the courier:
(i) if to UFAC at: United Financial Adjusting Company
000 Xxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx, President
Telecopy Number: (000) 000-0000; and
(ii) if to Frontier at: Frontier Adjusters of America, Inc.
00 Xxxx Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx,
Chief Executive Officer
Telecopy Number: (000) 000-0000
(d) ASSIGNMENT. Neither this Agreement nor any rights,
interests or obligations hereunder may be assigned by either of the parties
hereto without the prior written consent of the other party; PROVIDED, HOWEVER,
that UFAC may assign its rights, interests or obligations hereunder to any of
its Affiliates.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of each
of the parties.
(f) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Arizona applicable to
contracts made and to be performed wholly within that State.
(i) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every
--------------------------------------------------------------------------------
Page 10
11
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all remaining provisions
contained herein shall not be in any way impaired thereby, it being intended
that all of the rights and privileges of the Shareholders shall be enforceable
to the fullest extent permitted by law.
(j) ENTIRE AGREEMENT. This Agreement and the Stock Purchase
Agreement are intended by the parties as a final expression and a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter hereof. There are no restrictions, promises,
warranties or undertakings with respect to the subject matter hereof, other than
those set forth or referred to herein and therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
FRONTIER ADJUSTERS OF AMERICA, INC.
By: ____________________________
Name:
Title:
UNITED FINANCIAL ADJUSTING COMPANY
By: ____________________________
Name:
Title:
--------------------------------------------------------------------------------
Page 11
