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EXHIBIT 4.6
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of April 29, 1997, between
Budget Group, Inc. (formerly Team Rental Group, Inc.), a Delaware corporation
(the "COMPANY"), and the persons listed on the signature pages hereof.
1. Background. The Company issued $80,000,000 aggregate principal
amount of its 7.0% Convertible Subordinated Notes due 2003 pursuant to several
Note Purchase Agreements dated as of December 1, 1996 (the "ORIGINAL PURCHASE
AGREEMENTS") and the Company and the purchasers of said Notes are parties to a
Registration Rights Agreement dated December 18, 1996 (the "EXISTING
REGISTRATION RIGHTS AGREEMENT"), providing for registration rights with respect
to the Common Stock issuable upon conversion of the said Notes.
In connection with the financing of the acquisition of Budget Rent a
Car Corporation, (i) the Company is issuing $45,000,000 aggregate principal
amount of its 6.85% Convertible Subordinated Notes, Series B, due 2007 (the
"SERIES B NOTES") pursuant to several Note Purchase Agreements dated as of April
25, 1997 (the "SERIES B PURCHASE AGREEMENTS") between the Company and
institutional investor purchasers, and (ii) the Original Purchase Agreements
have been supplemented and amended (as so supplemented and amended, the "SERIES
A PURCHASE AGREEMENTS" and, together with the Series B Purchase Agreements,
collectively, the "PURCHASE AGREEMENTS") and the terms of said 7.0% Convertible
Subordinated Notes have been amended and said Notes have been redesignated as
7.0% Convertible Subordinated Notes, Series A, due 2007 (the "SERIES A NOTES"
and, together with the Series B Notes, collectively the "NOTES"). In connection
with such acquisition, Ford Motor Company is acquiring shares of a new series of
convertible preferred stock of the Company (the "ACQUISITION SHARES") initially
convertible into 4,500,000 shares of Common Stock.
Pursuant to Section 7 of the respective Purchase Agreements, the
Company is required to execute and deliver to a trustee (the "TRUSTEE") an
indenture (the "INDENTURE") providing for the issuance of convertible
subordinated notes (the "EXCHANGE NOTES") in two series, bearing interest at the
same rates and otherwise bearing the same terms and conditions as the Notes of
the respective series and having substantially the same terms and conditions as
are contained in the Purchase Agreements, and the Company is also required to
exchange the Notes of each series for a like aggregate unpaid principal amount
of Exchange Notes of the corresponding series. As used herein the term
"SECURITIES" means all Exchange Notes issued in exchange for the Notes.
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To provide the same registration rights to the holders of all of the
Notes, the Company and the holders of the Series A Notes hereby amend and
restate in its entirety the Existing Registration Rights Agreement and the
purchasers of the Series B Notes are joining as parties to the Existing
Registration Rights Agreement as so amended and restated.
Certain capitalized terms are defined in Section 3.
2. Registration under Securities Act, etc.
2.1. Filing of Shelf Registration Statement; Demand Registration. (a)
At the earlier of (i) March 1, 1998 and (ii) 30 days after the disposition by
Ford Motor Company, directly or indirectly, of at least 50% of the Acquisition
Shares, the Company shall file a "shelf" registration statement pursuant to Rule
415 under the Securities Act (the "SHELF REGISTRATION") with respect to the
Securities and the other Registrable Securities. The Company shall use its best
efforts to (i) have the Shelf Registration declared effective on or before the
Target Date therefor, and (ii) keep the Shelf Registration continuously
effective from the date the Shelf Registration is declared effective until the
Termination Date.
(b) At any time prior to the Initial Conversion Date, upon the
written request of the holders of all outstanding Notes or all outstanding
Securities, as the case may be, the Company shall file a registration statement
under the Securities Act (the "DEMAND REGISTRATION") with respect to an
underwritten offering of the Securities. The Company shall use its best efforts
to have the Demand Registration declared effective on or before the Target Date
therefor.
2.2. Registration Procedures. In connection with the Shelf
Registration or Demand Registration, as applicable, filed pursuant to Section
2.1, the Company will as expeditiously as possible:
(a) at or before the time the Demand Registration or the Shelf
Registration is declared effective, qualify the Indenture under the Trust
Indenture Act of 1939, as amended;
(b) subject to Section 9 hereof, prepare and file with the Commission
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 and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Securities covered by such registration statement until such time as all of
such securities have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such
registration statement;
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(c) furnish to each seller of Registrable Securities covered by such
registration statement such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (including
exhibits thereto, if requested), such number of copies of the prospectus
contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under
Rule 424 or Rule 430A under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such
seller may reasonably request;
(d) use its reasonable good faith efforts to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such
jurisdictions as each seller of Registrable Securities shall reasonably
request, to keep such registration or qualification in effect for so long
as such registration statement remains in effect, and to take any other
action which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the securities owned
by such seller, except that the Company shall not for any such purpose be
required (i) to register or qualify to do business as a foreign corporation
in any jurisdiction wherein it would not be obligated at the time to be so
registered or qualified, (ii) to take any action that would subject it to
the service of process in suits, other than as to matters and transactions
relating to such registration statement, in any jurisdiction where it would
not at the time be so subject, or (iii) to take any action that would
subject it to taxation in any jurisdiction in an amount greater than it
would be so subject without having taken such action;
(e) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities regulating the Company as may be
necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
(f) promptly notify each seller of Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, upon discovery that,
or upon 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 any material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made,
and, subject to Section 9 hereof, at the request of any such seller or
holder promptly prepare to furnish to
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such seller or holder a reasonable number of copies of a supplement to or
an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such 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 under which they were
made;
(g) notify each seller of Registrable Securities covered by such
registration statement:
(i) when the registration statement and any amendment thereto
has been filed with the Commission and when the registration statement
or any post-effective amendment thereto has become effective, and
(ii) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus included
therein or for additional information;
(h) notify each seller of Registrable Securities covered by such
registration statement:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose, and
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities included in the registration statement for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(i) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement at the earliest
possible time;
(j) use its best efforts to list all Common Stock issuable upon
conversion of the Securities covered by such registration statement on any
securities exchange on which any of the Registrable Securities is then
listed;
(k) maintain on file with any securities exchange on which any of the
Registrable Securities is then listed a copy of the most recent prospectus
and otherwise use its best efforts to allow the sellers to satisfy the
prospectus delivery requirements of the Securities Act in a manner not
requiring physical delivery of a prospectus; and
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(1) cooperate fully in any underwritten offering of the Registrable
Securities, including without limitation by participation in meetings with
potential investors and in the preparation of presentations for such
meetings and cause its executive officers to participate in a "roadshow" if
the managing underwriter so requests, provided that the officers of the
Company shall not be required to participate in any such roadshow except in
connection with the Demand Registration or in connection with an
underwritten offering involving at least a majority of the originally
issued Securities on an As Converted Basis.
The Company may require each holder of Registrable Securities to furnish the
Company such information regarding such holder and the distribution of such
securities as the Company may from time to time reasonably request in writing.
2.3. Underwriters. (a) If, pursuant to written notice delivered to the
Company from time to time by holders of at least 10% of the Securities on an As
Converted Basis, such holders so elect, the offer and sale of any Registrable
Securities pursuant to the Shelf Registration may be effected in the form of an
underwritten offering. The managing underwriter or underwriters of the offering,
if it is an underwritten offering, shall be selected by the Company, and such
underwriter, as well as the price, terms and provisions of the offering, shall
be subject to the approval of the holders of a majority of the Registrable
Securities (on an As Converted Basis) to be so offered (such approval not to be
unreasonably withheld).
(b) The offer and sale of the Securities pursuant to the Demand
Registration shall be effected in the form of an underwritten offering. In
connection with such offering, Credit Suisse First Boston Corporation shall act
as the book-running managing underwriter and the co-manager or managers, if any,
shall be selected by the Company. Such co-managers, as well as the price, terms
and provisions of the offering, shall be subject to the approval of the Required
Holders (such approval not to be unreasonably withheld).
2.4. Underwritten Offerings. If requested by the underwriters for any
offering by holders of Registrable Securities pursuant to the Shelf Registration
or Demand Registration, the Company will enter into an underwriting agreement
with such underwriters for such offering which is satisfactory in substance and
form to the Company, holders of a majority of the Registrable Securities
included in such offering and the underwriters and contains such representations
and warranties by the Company and such other terms as are generally prevailing
in agreements of this type, including without limitation indemnities to the
effect and to the extent provided in Section 2.7. The holders of the Registrable
Securities included in such offering will cooperate with the Company in the
negotiation of the underwriting agreement and will give
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consideration to the reasonable requests of the Company regarding the form
thereof; however, such cooperation and consideration does not diminish the
foregoing obligations of the Company. The holders of Registrable Securities to
be distributed by such underwriters shall be parties to such underwriting
agreement. No holder of Registrable Securities shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding (i)
such holder, (ii) such holder's Registrable Securities, (iii) such holder's
intended method of distribution of Registrable Securities, (iv) information
supplied by such holder in writing to the Company specifically for use in the
registration statement, (v) other representations required by law and (vi) with
respect to agreements with the underwriters, such other agreements not
inconsistent with this Agreement as are reasonably requested by such
underwriters and are customary for such transactions.
2.5. Expenses. The Company shall pay all Registration Expenses
incurred in connection with the Shelf Registration or the Demand Registration
and any supplements or amendments thereto, whether or not it becomes effective,
and whether all, none or some of the Registrable Securities are sold pursuant to
such Registration. Each holder of Registrable Securities selling all or a
portion of such Securities under the Shelf Registration or Demand Registration
shall pay all brokerage fees, commissions, concessions or discounts and, if
applicable, underwriting discounts and commissions, the fees and disbursements
of counsel representing such holder, and transfer taxes, if any, relating to the
sale or disposition of Registrable Securities by such holder pursuant to the
Shelf Registration or Demand Registration.
2.6. Preparation; Reasonable Investigation. In connection with the
preparation and filing of any registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, the underwriters, if
any, and their respective counsel and accountants, the opportunity to
participate in the preparation of such registration statement and each
prospectus included therein or filed with the Commission, and will give each of
them such access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of such holders' and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act; provided that
the participation of the accountants selected by the holders of Registrable
Securities shall be limited to a review of specified accounting issues of
interest to such holders.
2.7. Indemnification. (a) Indemnification by the Company. In the event
of any registration of any securities of the Company under the Securities Act
pursuant to this Agreement,
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the Company will, and hereby does, indemnify and hold harmless each seller of
any Registrable Securities covered by any registration statement filed pursuant
to Section 2.1 hereof, each other Person, if any, who controls such seller
within the meaning of Section 15 of the Securities Act, each broker or dealer
acting on behalf of such seller and each such seller's directors, officers,
partners, shareholders and employees (the seller, its directors and officers and
each such other Person is individually a "SELLER INDEMNITEE"), against any
losses, claims, damages or liabilities, joint or several, to which such Seller
Indemnitee may become subject under the Securities Act or otherwise, including
without limitation, the reasonable fees and expenses of legal counsel, insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in such registration statement,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or 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, and the Company will reimburse, as from time to
time incurred, each Seller Indemnitee for any legal or any other expenses
reasonably incurred by such Seller Indemnitee in connection with investigating
or defending any such loss, claim, liability, action or proceeding; provided
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished by such Seller Indemnitee to the Company specifically for use therein
and, provided further that the Company shall not be liable to any Person who
participates as an underwriter, in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriters within
the meaning of the Securities Act, in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Securities to such Person if such statement or omission was corrected in such
final prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of a seller or its
respective Seller Indemnitees and shall survive the transfer of such securities
by such Seller Indemnitee. This indemnity agreement
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is in addition to any liability that the Company may otherwise have.
(b) Indemnification by the Sellers. In the event of any registration
of any Registrable Securities pursuant to Section 2.1 hereof, each holder of
Registrable Securities covered by such registration statement severally, but not
jointly, will indemnify and hold harmless (in the same manner and to the same
extent as set forth in Subsection (a) of this Section 2.7) the Company, each
director of the Company, each officer of the Company and each other Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act, with respect to any statement or alleged statement in or omission or
alleged omission from such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such holder for use therein. No holder
of Registrable Securities shall be required by this Subsection (b) to pay an
amount in excess of the amount by which the total net proceeds (before deducting
expenses) received by such holder upon the sale of Registrable Securities
included in such registration exceeds the total purchase price paid to the
Company for the Securities attributable to such Registrable Securities. This
indemnity agreement is in addition to any liability that such holder of
Registrable Securities may otherwise have.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding Subsections of this Section 2.7, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding Subsections of this Section 2.7, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in the
reasonable judgment of such indemnified party's counsel a conflict of interest
between such indemnified party and indemnifying parties may exist in respect of
such claim, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. An indemnifying
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party who is not entitled to assume the defense of a claim will not be obligated
to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of such indemnified party's counsel a conflict of interest
may exist between such indemnified party and any other of such indemnified
parties with respect to such claim (in which case such indemnified parties may
have separate counsel). No indemnifying party shall, without the consent of the
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 release from all liability
in respect to such claim or litigation. No indemnified party shall, without the
consent of the indemnifying party, consent to the entry of any judgment or enter
into any settlement without the consent of the indemnifying party (which consent
will not be unreasonably withheld).
(d) Indemnification Payments. The indemnification required by this
Section 2.7 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
2.8. Adjustments Affecting Registrable Securities. The Company will
not effect or permit to occur any combination or subdivision of shares which at
the time effected or permitted in the Company's good faith opinion would
adversely affect the ability of the holders of Registrable Securities to include
such Registrable Securities in any registration of its securities contemplated
by this Section 2 or the marketability of such Registrable Securities under any
such registration.
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
Acquisition Shares: As defined in Section 1.
As Converted Basis: As defined in the Purchase Agreements.
Board of Directors: As defined in the Purchase Agreements.
Business Day: As defined in the Purchase Agreements.
Closing Date: April 29, 1997.
Commission: The Securities and Exchange Commission and any successor
agency of the United States federal government having similar powers.
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Common Stock: The Class A Common Stock, par value $.01 per share, of
the Company.
Demand Registration: As defined in Section 2.1(b).
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: As defined in Section 1.
Indenture: As defined in Section 1.
Initial Conversion Date: As defined in the Purchase Agreements.
Person: As defined in the Purchase Agreements.
Purchase Agreements: As defined in Section 1.
Registrable Securities: (a) Any shares of Common Stock issued or
issuable upon conversion of the Securities or the Notes, (b) any securities
issued or issuable with respect to any such Securities, Notes or Common Stock by
way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise (including without limitation pursuant to antidilution provisions in
Section 11.2 of the Purchase Agreements) and (c) any Securities required to be
registered pursuant to Section 2.1. As to any particular Registrable Securities,
once issued such securities shall cease to be Registrable Securities when (a)
the Shelf Registration or Demand Registration with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such Shelf
Registration or Demand Registration, (b) they shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the Securities
Act, (c) they shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by
the Company and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law then in
force, or (d) they shall have ceased to be outstanding.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with Section 2, including without limitation all
registration and filing fees, all fees of the National Association of Securities
Dealers, Inc., all fees and expenses of complying with securities or blue sky
laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the reasonable fees and disbursements of counsel for the
Company and of its independent public accountants, including the expenses of any
special audits or "comfort" letters required by or incident to such performance
and
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compliance, premiums and other costs of policies of insurance obtained by the
Company against liabilities arising out of the public offering of the
Registrable Securities being registered and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any, and any
expenses not permitted by law to be paid by the Company, provided that, in any
case where Registration Expenses are not to be borne by the Company, such
expenses shall not include salaries of Company personnel or general overhead
expenses of the Company, auditing fees, premiums or other expenses relating to
liability insurance required by underwriters of the Company or other expenses
for the preparation of financial statements or other data normally prepared by
the Company in the ordinary course of its business or which the Company would
have incurred in any event.
Required Holders: As defined in the Purchase Agreements.
Rule 144: As defined in Section 4.
Securities: As defined in Section 1.
Securities Act: The Securities Act of 1933, as amended.
Shelf Registration: As defined in Section 2.1(a).
Target Date: 45 days after the date of filing of the Shelf Registration
or the Demand Registration, as applicable.
Termination Date: The second anniversary of the Closing Date or such
earlier date as of which the Securities shall be paid in full prior to
conversion or shall no longer constitute restricted securities under Rule 144 of
the Securities Act and may be sold without regard to the volume limitations of
Rule 144 or all the Registrable Securities covered by the Shelf Registration
have been sold pursuant to the Shelf Registration.
4. Rule 144 and Rule 144A. The Company shall take all actions
reasonably necessary to enable holders of Registrable Securities to sell such
securities without registration under the Securities Act, to the extent
permitted thereunder, 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
("RULE 144"), (b) Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or (c) any similar rules or regulations hereafter
adopted by the Commission, including, without limiting the generality of the
foregoing, filing on a timely basis all reports required to be filed by the
Exchange Act. Upon the reasonable request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.
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5. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of (a) the holder
or holders of at least 66 2/3% of the Notes or Securities, as the case may be,
on an As Converted Basis if at such time the original purchasers of the Notes
under the Purchase Agreements and their respective affiliates in the aggregate
hold at least 66 2/3% of the Notes or Securities, as the case may be, on an As
Converted Basis, and (b) otherwise the holder or holders of a majority of the
Registrable Securities on an As Converted Basis. Each holder of Notes,
Securities or other Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 5, whether or not such
Notes, Securities or Registrable Securities shall have been marked to indicate
such consent.
6. Nominees for Beneficial Owners. In the event that any Notes,
Securities or other Registrable Securities are held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at its election and
by prior written notice to the Company, be treated as the holder of such Notes,
Securities or Registrable Securities for purposes of any request or other action
by any holder or holders of Notes, Securities or Registrable Securities pursuant
to this Agreement or any determination of any number or percentage of shares of
Registrable Securities held (directly or on an As Converted Basis) by any holder
or holders of Registrable Securities contemplated by this Agreement.
7. Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by confirmed facsimile
transmission (hard copy to be sent on the date of such transmission) or
delivered by hand or sent by a reputable overnight courier service prepaid (with
confirmation of receipt) and (a) if addressed to a party other than the Company,
addressed to such party in the manner set forth in the Purchase Agreements, or
at such other address as such party shall have furnished to the Company in
writing, or (b) if addressed to any other holder of Registrable Securities at
the address that such holder shall have furnished to the Company in writing, or,
until any such other holder so furnishes to the Company an address, then to and
at the address of the last holder of such Registrable Securities who has
furnished an address to the Company, or (c) if addressed to the Company, at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, to the attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or at such other address as the Company shall have furnished to
each holder of Registrable Securities at the time outstanding. Notices and other
communications hereunder shall be deemed to have been duly given if sent as
aforesaid.
8. Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties
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hereto and their respective successors and assigns. In addition, and whether or
not any express assignment shall have been made, the provisions of this
Agreement which are for the benefit of the parties hereto other than the Company
shall also be for the benefit of and enforceable by any subsequent holder of any
Notes, Securities or Registrable Securities, subject to the provisions
respecting the minimum numbers or percentages of shares of Registrable
Securities required in order to be entitled to certain rights, or take certain
actions, contained herein.
9. Holdback Agreements. Notwithstanding anything in this Agreement
to the contrary, the Company may prohibit offers and sales of Registrable
Securities at any time if
(a)(i) it is in possession of material non-public information, (ii) the
Board of Directors of the Company determines in good faith that disclosure
of such material non-public information would not be in the best interests
of the Company and its stockholders and (iii) the Board of Directors of the
Company or the Chief Executive Officer or the Chief Financial Officer of
the Company determines (based on advice of counsel) that such prohibition
is necessary in order to avoid a requirement to disclose such material
non-public information; or
(b) the Company has made a public announcement relating to an
acquisition or business combination transaction including the Company
and/or one or more of its Subsidiaries (i) that is material to the Company
and its Subsidiaries taken as a whole (and for such purpose no transaction
shall be deemed material unless, on a pro forma basis and after giving
effect thereto, consolidated assets or consolidated revenues of the Company
and its Subsidiaries as of the end of or for the most recently completed
fiscal year would be increased by at least 10%) and (ii) the Board of
Directors of the Company or the Chief Executive Officer or the Chief
Financial Officer of the Company determines in good faith that offers and
sales of Registrable Securities prior to the consummation of such
transaction (or such earlier date as the Board of Directors or the Chief
Executive Officer or the Chief Financial Officer of the Company shall
determine) is not in the best interests of the Company and its
stockholders,
provided that during any period of prohibition neither the Company nor any other
Person to whom the Company shall have given registration rights with respect to
shares of Common Stock shall be entitled to make offers and sales of Common
Stock pursuant to a registration statement filed under the Securities Act, other
than pursuant to an employee stock purchase plan, stock option or other employee
benefit plan or a dividend re-investment plan of the Company (each period during
which any prohibition of offers and sales of Registrable Securities is in effect
pursuant to
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clause (a) or (b) of this Section 9 is referred to herein as a "SUSPENSION
PERIOD").
A Suspension Period shall commence on and include the date on which the
Company provides written notice to holders of Registrable Securities that offers
and sales of Registrable Securities cannot be made in accordance with this
Section 9 and shall end on the date on which each such holder of Registrable
Securities either receives copies of a prospectus supplement, as contemplated by
Section 2.2(b), or is advised in writing by the Company that offers and sales of
Registrable Securities and use of the prospectus may be resumed, provided,
however, that all Suspension Periods pursuant to clause (a) of this Section 9 in
the aggregate shall not exceed 60 days during any period of twelve consecutive
calendar months (nor more than 20 consecutive days for any one Suspension
Period) and each Suspension Period shall be followed by at least ten Business
Days during which no Suspension Period is in effect.
10. No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement.
11. Remedies. Each holder of Registrable Securities, 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 hereunder. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
12. Headings. The headings of this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms hereof.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
BUDGET GROUP, INC.
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer
[SERIES A NOTE PURCHASERS]
METROPOLITAN LIFE INSURANCE COMPANY
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE INSURANCE
COMPANY
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE INSURANCE
COMPANY
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
SIGNATURE 1A (CAYMAN), LTD.
By ▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE INSURANCE
COMPANY, PORTFOLIO ADVISER
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
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NEW YORK LIFE INSURANCE COMPANY
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Investment Manager
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By ▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
MASSMUTUAL CORPORATE VALUE PARTNERS
LIMITED
By MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, ITS INVESTMENT MANAGER
By ▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
MASSMUTUAL PARTICIPATION INVESTORS
By ▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
MASSMUTUAL CORPORATE INVESTORS
By ▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
[SERIES B NOTE PURCHASERS]
NEW YORK LIFE INSURANCE COMPANY
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Investment Manager
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TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director - Private Placements
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE INSURANCE
COMPANY
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE INSURANCE
COMPANY
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
THE VARIABLE ANNUITY LIFE INSURANCE
COMPANY
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Investment Officer
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By ▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
THE TRAVELERS INSURANCE COMPANY
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Assistant Investment Officer
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THE TRAVELERS INDEMNITY COMPANY
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Assistant Investment Officer
METROPOLITAN LIFE INSURANCE COMPANY
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
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