Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into the 5th day of January, 1998, by and between CROSS-CONTINENT AUTO
RETAILERS, INC., a Delaware corporation (the "Company"), and The Xxxxxxxx
Family Trust R-501 (the Stockholder").
INTRODUCTION
In accordance with the Amended and Restated Stock Purchase Agreement
dated November 1, 1997, as amended to the date hereof (the "Stock Purchase
Agreement"), by and among the Company, the Stockholder, and JRJ Investments,
Inc., the Stockholder is being issued shares of restricted common stock, par
value $.01 per share, of the Company (the "Common Stock") in connection with
the consummation of the transactions contemplated thereby.
As a condition to the consummation of the transactions contemplated by
the Stock Purchase Agreement, the Company and the Stockholder are entering
into this Agreement.
The parties hereto agree as follows:
1. DEFINITIONS. As used herein, the following terms have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"Distribution Period" means (a) in the case of a distribution of
Registrable Shares in a firm commitment underwritten public offering, the
period of time as each underwriter has completed the distribution of all
securities purchased by it, but in any case not more than thirty (30) days,
or (b) in the case of any other distribution of Registrable Shares, the
period ending on the earlier of (i) the sale of all Registerable Shares
covered by such registration, or (ii) twenty-one (21) days following the
effective date of the registration statement utilized in connection with
such registration under the Securities Act.
"Registrable Shares" means the shares of Common Stock issued to the
Stockholder pursuant to the Stock Purchase Agreement, including any
additional shares issued as a stock dividend thereon or any shares issued
as the result of a stock split (including reverse stock split),
recapitalization, reorganization, stock exchange or other combination).
"Securities Act" means the Securities Act of 1933, as amended.
2. INCIDENTAL REGISTRATION.
a. If the Company proposes to register any Common Stock under the
Securities Act (other than on Forms X-0, X-0 or any other form which
does not permit registration of
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securities by selling stockholders for sale to the public for
cash) in connection with the proposed offer and sale for cash
either for its own account or on behalf of any holder of Common
Stock, it will give prompt written notice to the Stockholder of
its intention to do so. Upon the Stockholder's written request
to the Company, given within twenty (20) days after receipt of
any such notice, to register any of such Stockholder's
Registrable Shares, the Company will use reasonable efforts to
cause the Registrable Shares as to which registration shall have
been so requested to be included in the shares of Common Stock to
be covered by the registration statement proposed to be filed by
the Company; provided that nothing set forth in this Agreement
shall prevent the Company from, at any time, withdrawing,
abandoning or delaying any registration of such Common Stock.
b. The Company shall have the sole right to select the underwriter or
underwriters for any underwritten offering, including (without
limitation) the managing underwriter. The managing underwriter for
such offering shall have the authority, in its sole discretion, to
reduce the number of Registrable Shares to be included in such
registration if and to the extent that it advises the Company in
writing that in its opinion that inclusion of such Registrable Shares
would adversely affect the marketing of the other Common Stock to be
sold thereunder or would limit the number of shares of Common Stock to
be included in such registration by the Company. Any such reduction
in the shares included in any such offering shall be effected (i)
first, by excluding (A) shares ("Piggyback Shares") of Common Stock
that otherwise would be included by virtue of incidental or piggyback
registration rights (but not demand registration rights) granted to
stockholders of the Company (including the Stockholder), and (B)
shares ("Executive shares") of Common Stock that are beneficially
owned by Xxxx Xxxxxxxxx or Xxxxxx X. Xxxx and that otherwise would be
included, which exclusion shall be effected on a pro rata basis based
upon the number of shares of Common Stock so requested to be
registered in such offering by all such stockholders proposing to sell
Piggyback Shares or Executive Shares, and (ii) second, only to the
extent necessary and after the exclusion of all Piggyback Shares and
Executive Shares, by excluding shares of Common Stock included in such
registration by the Company and any stockholder of the Company who
shall have exercised a demand registration right in connection with
such offering, which exclusion shall be effected on a pro rata basis
based upon the number of shares of Common Stock proposed to be
registered on behalf of the Company and on behalf of any such holder
of demand registration rights, unless the Company and the holder of
such demand registration rights otherwise agree.
c. On any offering that is not underwritten, the Company shall have the
authority, in its sole discretion, to reduce the number of Registrable
Shares to be included in such registration if and to the extent that
it, in good faith, determines that inclusion of such Registrable
Shares would adversely affect the marketing of the other Common Stock
to be sold thereunder or would limit the number of shares of Common
Stock to be included in such registration by the Company. Any such
reduction in the shares included in any such offering shall be
effected (i) first, by excluding Piggyback Shares and Executive
Shares, which exclusion shall be effected on a pro rata basis based
upon the number of shares of Common Stock so requested to be
registered in such offering
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by all such stockholders proposing to sell Piggyback Shares or
Executive Shares, and (ii) second, only to the extent necessary
and after the exclusion of all Piggyback Shares and Executive
Shares, by excluding shares of Common Stock included in such
registration by the Company and any stockholder of the Company
who shall have exercised a demand registration right in
connection with such offering, which exclusion shall be effected
on a pro rata basis based upon the number of shares of Common
Stock proposed to be registered on behalf of the Company and on
behalf of any such holder of demand registration rights, unless
the Company and the holder of such demand registration rights
otherwise agree.
d. If any registration pursuant to this Section 2 shall be underwritten,
in whole or in part, the Company or the managing underwriter or
underwriters may require that the Registrable Shares requested for
inclusion pursuant to this Section 2 be included in the underwriting
on the same terms and conditions as the securities otherwise being
sold through the underwriters.
3. PREPARATION AND FILING. If and whenever the Company is under an
obligation pursuant to the provisions of Section 2 to effect the
registration of any Registrable Shares, the Company shall, as expeditiously
as practicable:
a. prepare and diligently pursue the filing with the Commission of a
registration statement with respect to such securities and use
reasonable efforts to cause such registration statement to become and
remain effective for the Distribution Period, but no longer;
b. notify Stockholder of the effectiveness of the registration statement
and 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 for the Distribution Period, but no longer;
c. furnish to the Stockholder such number of copies of a summary
prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as the Stockholder may reasonably request in order to
facilitate the public sale or other disposition of such Registrable
Shares;
d. use reasonable efforts to register or qualify the Registrable Shares
covered by such registration statement under the securities or "blue
sky" laws of such states as the Stockholder shall reasonably request
(provided, that the Company shall not be required to consent to
general service of process for all purposes in any jurisdiction where
it is not then qualified) and do any and all other acts or things
which may be necessary or advisable to enable the Stockholder to
consummate the public sale or other disposition in such jurisdictions
of such securities;
e. notify the Stockholder at any time during the Distribution Period when
a prospectus relating thereto covered by such registration statement
is required to be delivered under
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the Securities 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 at the request of
such Stockholder, prepare and furnish to such Stockholder 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 shares, 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 the light of the
circumstances then existing;
f. use reasonable efforts to furnish, at the request of the Stockholder
on the date that such Registrable Shares are delivered to the
underwriters for sale in connection with a registration pursuant to
Section 2, if such securities are being sold through underwriters, or,
if such securities are not being sold through underwriters, on the
date that the registration statement with respect to such securities
becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration,
stating that such registration statement has become effective under
the Securities Act and that (A) to the best of such counsel's
knowledge, no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, (B) the registration
statement, the related prospectus, and each amendment or supplement
thereof, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (except no opinion or
statement is required regarding financial statements and other
financial and statistical data), and (C) to such other matters as may
reasonably be requested by counsel for the underwriters, if any, and
(ii) a letter dated such date, from the independent certified public
accountants of the Company, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the
opinion of such accountants, the financial statements of the Company
included or incorporated by reference in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act, and such letter shall additionally
cover such other financial matters with respect to the registration in
respect of which such letter is being given as such underwriters, if
any, may reasonably request.
g. cause all included Registrable Shares to be listed on each securities
exchange on which similar securities issued by the Company are then
listed, and, if not so listed, to be listed on the NASD automated
quotation system;
h. provide a transfer agent and registrar for all included Registrable
Shares not later than the effective date of such registration
statement;
i. enter into such customary agreements, take all such other actions, and
cause the
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Company's officers, directors, employees and independent
accountants to supply all information as Stockholder may
reasonably request in order to expedite or facilitate the
disposition of the registered Registrable Shares;
j. comply with all applicable rules and regulations of the Commission;
and
k. in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending
or preventing the use of any related prospectus or suspending the
qualification of any Registrable Shares included in such registration
statement for sale in any jurisdiction, the Company shall use
reasonable efforts to promptly obtain the withdrawal of such order.
Notwithstanding anything to the contrary contained herein, the
Company shall have the right to deregister any Registerable
Shares that remain unsold at the conclusion of any Distribution
Period.
4. STOCKHOLDER'S LOCK-UP; COOPERATION. If any Registrable Shares of the
Stockholder are included in an underwritten registration pursuant to
Section 2, the Stockholder, as a condition to receiving the rights granted
hereunder, may be required to, and if required the Stockholder shall, enter
into an agreement with the managing underwriter or underwriters (a "Lock-up
Agreement"), pursuant to which such Stockholder shall refrain from selling
any shares of Common Stock not included in such registration during the
Distribution Period and for a period of up to 180 days following the
effective date of such registration; provided, however, that such Lock-up
Agreement shall not restrict such Stockholder from selling such shares for
a period longer than that imposed upon Xxxx Xxxxxxxxx or Xxxxxx X. Xxxx
pursuant to a similar lock-up agreement entered into by Xxxx Xxxxxxxxx or
Xxxxxx X. Xxxx in connection with such distribution of Common Stock. In
connection with each registration pursuant to Section 2 hereof, the
Stockholder selling Registrable Shares shall furnish in writing to the
Company and any underwriter participating in such offering such information
with respect to themselves and the proposed distribution by them as shall
be reasonably necessary in order to assure compliance with Federal and
applicable state securities laws.
5. UNDERWRITING AGREEMENT. In connection with each registration pursuant to
Section 2 covering an underwritten public offering, the Company and the
Stockholder agree to enter into a written agreement with the managing
underwriter or underwriters in such form and containing such provisions as
are usual and customary in the securities business for such an arrangement
between reputable underwriters and companies of the Company's size and
investment stature; provided that such agreement shall not contain any such
provision applicable to the Company or the Stockholder which is
inconsistent with the provisions of this Agreement; and provided, further,
that the time and place of the closing under said underwriting agreement
shall be as mutually agreed upon between the Company and such managing
underwriter.
6. EXPENSES. With respect to each registration pursuant to Section 2
hereof, the Company shall bear the following fees, costs and expenses: all
registration and filing fees, fees of the
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National Association of Securities Dealers, Inc., printing
expenses, fees and disbursements of counsel and accountants for
the Company, fees and disbursements of counsel for the
underwriter or underwriters of the securities included in such
registration (if the Company and/or selling security holders are
required to bear such fees and disbursements), all internal
Company expenses, and all reasonable legal fees and disbursements
and other reasonable expenses of complying with state securities
or blue sky laws of any jurisdiction in which the securities to
be offered are to be registered or qualified. Fees and
disbursements of counsel and accountants for the Stockholder,
underwriting discounts and commissions and transfer taxes
relating to the Registrable Shares included in the offering by
the Stockholder, and any other expenses incurred by the
Stockholder not expressly included above, shall be borne by such
Stockholder.
7. INDEMNIFICATION.
a. In the event of any registration of any Registrable Shares under the
Securities Act pursuant to this Agreement or registration or
qualification of any Registrable Shares under state securities or
"blue sky" laws pursuant to this Agreement, the Company shall
indemnify and hold harmless the Stockholder, its trustees,
beneficiaries, agents, and consultants against any losses, claims,
damages or liabilities, joint or several, to which the Stockholder or
such other person 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 an untrue
statement or alleged untrue statement of a material fact contained in
any registration statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement
thereto, or any document prepared or furnished by the Company incident
to the registration or qualification of any Registrable Shares
pursuant to this Agreement, 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, with respect to any prospectus, necessary to make the
statements therein in light of the circumstances under which they were
made, not misleading, or any violation by the Company of the
Securities Act or state securities or "blue sky" laws applicable to
the Company and relating to action or inaction required of the Company
in connection with such registration or qualification under such state
securities or "blue sky" laws; and shall reimburse the Stockholder or
such other person for any legal or any other expenses reasonably
incurred by him in connection with investigating or defending any such
loss, claim, damage, liability or action; provided that the Company
shall not be liable (i) in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in the registration statement, any preliminary
prospectus or final prospectus or any amendment or supplement or any
document incident to the registration or qualification of any
Registrable Shares pursuant to this Agreement in reliance upon and in
conformity with written information furnished to the Company by the
Stockholder, or other person on behalf of the Stockholder, or such
underwriter specifically for use in the preparation thereof, and (ii)
to any broker or other person acting on behalf of such Stockholder to
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the extent that any such loss, claim, damage or liability arises out
of or is based upon any representation or other statement of such
broker or other person that is not in conformity with the preliminary
prospectus or final prospectus.
b. Stockholder hereby indemnifies and holds harmless the Company, each
director of the Company, each officer of the Company who shall sign
such registration statement and any person who controls the Company
within the meaning of the Securities Act; and, before Registrable
Shares held by such Stockholder shall be included in any registration
pursuant to this Agreement, any underwriter acting on such
Stockholder's behalf shall agree to indemnify and hold harmless the
Company, each director of the Company, each officer of the Company who
shall sign such registration statement and any person who controls the
Company within the meaning of the Securities Act (in each case in the
same manner and to the same extent as set forth in (a) above) with
respect to any untrue statement or omission from such registration
statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, if such untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by such Stockholder
specifically for use in the preparation of such registration
statement, preliminary prospectus, final prospectus or amendment or
supplement; provided that the maximum amount of liability in respect
of such indemnification shall be limited, in the case of the
Stockholder who, at any time during the registration or the year
preceding the registration, was not an officer or director of the
Company or any of its subsidiaries, to the amount paid for such
Registrable Shares upon the sale thereof pursuant to such
registration.
c. Each party entitled to indemnification hereunder (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 claim as to which
indemnity may be sought, and shall permit the indemnifying party (at
its expense) to assume the defense of any 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
reasonably satisfactory to the indemnified party, and the indemnified
party may participate in such defense, but only at such indemnified
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 under this Section 7 except
to the extent that the omission results in a failure of actual notice
to the indemnifying party and such indemnifying party is damaged as a
result of the failure to give notice. It is understood that the
indemnifying party shall not, in connection with any action or related
actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such
jurisdiction to act as counsel for the indemnified 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 release from all liability in
respect to such claim or litigation.
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8. RULE 144 MATTERS. For so long as the Stockholder holds Registrable
Shares, or shares of Common Stock that will become Registrable Shares, that
may not be sold, without restriction, under Rule 144 under the Securities
Act or any successor rule, the Company shall (a) make and keep public
information generally available, as those terms are defined in Rule 144
under the Securities Act, and (b) file with the Commission in a timely
manner reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended.
9. REPRESENTATIONS AND WARRANTIES.
a. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company hereby
represents and warrants to the Stockholder that:
i. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part
of the Company. The Company has all requisite corporate power
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby and has duly executed and
delivered this Agreement. This Agreement constitutes the valid
and binding obligation of the Company, enforceable against the
Company in accordance with its respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equitable principles.
ii. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby nor
compliance by the Company with any of the provisions hereof will
(A) conflict with or result in a breach of the charter, by-laws
or other constitutive documents of the Company, (B) conflict with
or result in a default (or give rise to any right of termination,
cancellation or acceleration) under any of the provisions of any
note, bond, lease, mortgage, indenture, license, franchise,
permit, agreement or other instrument or obligation to which the
Company is a party, or by which the Company or the Company's
properties or assets may be bound or affected, except for such
conflict, breach or default as to which requisite waivers or
consents shall be obtained before the Closing, (C) violate any
law, statute, rule or regulation or order, writ, injunction or
decree applicable to the Company or the Company's properties or
assets, or (D) result in the creation or imposition of any
security interest, lien or other encumbrance upon any of the
Company's properties or assets. No consent or approval by, or
any notification of or filing with, any person, firm,
corporation, partnership, joint venture, association or entity
(governmental or private) (each, a "person" and collectively,
"persons") is required in connection with the execution, delivery
and performance by the Company of this Agreement or the
consummation of the transactions contemplated hereby, except as
set forth in the Stock Purchase Agreement.
b. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The Stockholder
represents
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and warrants to the Company that:
i. The Stockholder has all requisite power, capacity and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby and has duly executed and delivered this
Agreement. This Agreement constitutes the valid and binding
obligation of the Stockholder, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equitable principles.
ii. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby nor
compliance by the Stockholder with any of the provisions hereof
will (A) conflict with or result in a default (or give rise to
any right of termination, cancellation or acceleration) under any
of the provisions of any note, bond, lease, mortgage, indenture,
license, franchise, permit, agreement or other instrument or
obligation to which the Stockholder is a party, or by which the
Stockholder or the Stockholder's properties or assets may be
bound or affected, except for such conflict, breach or default to
which requisite waivers or consents shall be obtained before the
Closing, (B) violate any law, statute, rule, regulation or order,
writ, injunction, or decree applicable to the Stockholder or the
Stockholder's properties or assets, or (C) result in the creation
or imposition of any security interest, lien or other encumbrance
upon any property or assets of the Stockholder. No consent or
approval by, or any notification of or filing with, any person is
required in connection with the execution, delivery and
performance by the Stockholder of this Agreement or the
consummation of the transactions contemplated hereby, except as
set forth in the Stock Purchase Agreement.
10. TERMINATION OF REGISTRATION RIGHTS. The Stockholder shall not be entitled
to execute any registration right provided for in this Agreement after the
second anniversary of the date of this Agreement.
11. MISCELLANEOUS.
a. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and the Stockholder with respect to the
transactions contemplated hereby and supersedes all prior agreements
or understandings among the parties with respect thereto.
b. HEADINGS. Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any provision of
this Agreement.
c. NOTICES. All notices or other communications provided for in this
Agreement shall be in writing and shall be sent by confirmed telecopy
to the telecopy number set forth below (with an undertaking to provide
a hard copy) or delivered by hand or sent by overnight courier service
prepaid to the address specified below, or to such other
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telecopy number or address as the party to whom notice is to be
given may have furnished to the other party in writing in
accordance with this subsection.
IF TO THE COMPANY:
Cross-Continent Auto Retailers, Inc.
0000 X. Xxxxxx
Xxxxxxxx, Xxxxx 00000
ATTN: R. Xxxxx Xxxxx
Telecopy Number: 806/374-3818
IF TO THE STOCKHOLDER:
The Xxxxxxxx Family Trust R-501
40 Innisbrook
Las Vegas, Nevada 89113
ATTN: Xxxxx X. Xxxxxxxx, Xx.
Telecopy Number: 702/227-0171
WITH A COPY TO:
Xxxxxxx Xxxxxx, Esq.
Jones, Jones, Close & Xxxxx
3773 Xxxxxx Xxxxxx Parkway, Xxxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Telecopy Number: 702/734-2722
d. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts together shall
constitute but one agreement.
e. AMENDMENTS. This Agreement shall not be altered or otherwise amended
except pursuant to an instrument in writing signed by the Company and
the Stockholder.
f. TRANSFERABILITY. The registration and other rights granted to the
Stockholder hereunder are non-transferable and cannot be assigned or
transferred in any manner to any third party without the prior written
consent of the Company.
g. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA.
COMPANY: CROSS-CONTINENT AUTO RETAILERS, INC.
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By:
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Xxxx Xxxxxxxxx, Chairman
STOCKHOLDER: THE XXXXXXXX FAMILY
TRUST R-501
By:
-------------------------------
Xxxxx X. Xxxxxxxx, Xx., Trustee
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