EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into as of July 1, 2002, by and between Liberte Investors Inc., a
Delaware corporation (the "COMPANY"), and Xxxxxx X. Xxxxxxx, an individual (the
"INVESTOR").
RECITALS:
A. Pursuant to that certain Nonqualified Stock Option Agreement (herein
so called) dated as of July 9, 2002, between the Investor and the Company, the
Company has granted to the Investor options (the "OPTIONS") exercisable for an
aggregate of 2,573,678 shares of Common Stock (hereinafter defined), subject to
certain adjustments, conditions and limitations described therein, including the
receipt of stockholder approval with respect to such grant, and has agreed to
grant to the Investor additional options (the "ADDITIONAL OPTIONS") under
certain circumstances as set forth therein.
B. The Investor may acquire up to 333,333 shares of Common Stock from
the Company within one (1) year of the date hereof (the "PURCHASED SHARES").
C. The Company has agreed to grant certain registration rights with
respect to the shares of Common Stock issuable upon exercise of the Options and
the Additional Options and the Purchased Shares, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENTS:
1. Certain Definitions.
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Additional Options: See the recitals to this Agreement.
Affiliate: A Person that directly, or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control
with a specified Person.
Common Stock: The common stock, par value $.01 per share, of
the Company.
Exchange Act: The Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated thereunder.
Options: See the recitals to this Agreement.
Market Price: That price of a security determined as follows:
(i) if the security is listed on any established stock exchange or a national
market system, including, without limitation, the National Market System of the
National Association of Securities Dealers Automated Quotation System, its fair
market value shall be the closing sales price or the closing bid if no sales
were reported, as quoted on such system or exchange (or the largest such
exchange) on the business day immediately preceding the date of the S-3 Request
(or if there are no sales or bids for such date, then for the last preceding
business day for such sales or bids), as reported in The Wall Street Journal or
similar publication; (ii) if the security is regularly quoted by a recognized
securities dealer but selling prices are not reported, its fair market value
shall be the mean between the high bid and low asked prices for the security on
the date of the S-3 Request (or if there are no quoted prices for such date,
then for the last preceding business day on which there were quoted prices); or
(iii) in the absence of an established market for the security, the fair market
value shall be determined in good faith by the Company's Board of Directors,
with reference to the Company's net worth, prospective earning power,
dividend-paying capacity and other relevant factors, including the goodwill of
the Company, the economic outlook in the Company's industry, the Company's
position in the industry and its management, and the values of stock of other
corporations in the same or a similar line of business (all of such factors
determined as of the date of the S-3 Request).
Person: An individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
Prospectus: The prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including all material incorporated by reference
into such prospectus.
Registrable Securities: (a) any shares of Common Stock issued
or issuable upon the exercise of the Options or the Additional Options
(collectively, the "OPTIONED SHARES"), (b) the shares of Common Stock comprising
the Purchased Shares and (c) any securities issued or issuable with respect to
the Optioned Shares by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. Any Registrable Security will cease to be a
Registrable Security when (i) a registration statement covering such Registrable
Security has been declared effective by the SEC and the Registrable Security has
been disposed of pursuant to such effective registration statement, (ii) the
Registrable Security is sold under circumstances in which all of the applicable
conditions of Rule 144 (or any similar provisions then in force) under the
Securities Act are met, (iii) the Registrable Security has been otherwise
transferred, the Company has delivered a new certificate or other evidence of
ownership for it not bearing a legend restricting further transfer under
securities laws, and it may be resold without subsequent registration under the
Securities Act, or (iv) the Registrable Security may be sold under Rule 144(k)
of the Securities Act.
Registration Expenses: See Section 5 hereof.
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Registration Statement: The Registration Statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus included therein, all amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended from
time to time, and the rules and regulations promulgated thereunder.
Underwritten Registration and Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Registration Rights.
(a) Shelf Registration. On or before 180 days after the date
hereof, the Company shall prepare and file with the SEC a "shelf" registration
statement (the "Shelf Registration Statement") on the appropriate form for an
offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act covering all of the Registrable Securities, which registration
statement shall consist of a resale prospectus comprising part of the Company's
registration statement on Form S-8 with respect to the Purchased Shares and the
Optioned Shares. The Company shall use its reasonable best efforts to have the
Shelf Registration Statement declared effective and to keep such Shelf
Registration Statement continuously effective until the later of (i) the date
which is 36 months following the date upon which the Shelf Registration
Statement becomes effective, and (ii) the date which is three months after the
date on which the Investor ceases to be an Affiliate of the Company in the
opinion of counsel for the Company. Any holder of Registrable Securities
(individually, a "Holder," and collectively, the "Holders") shall be permitted
to withdraw all or any part of the Registrable Securities from a Shelf
Registration Statement at any time prior to the effective date of such Shelf
Registration Statement.
The Company agrees, subject to Section 4(j), if necessary, to
supplement or amend the Shelf Registration Statement, as required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or as
requested (which request shall result in the filing of a supplement or
amendment) by any holder of Registrable Securities to which such Shelf
Registration Statement relates, and the Company agrees to furnish to such
holders, such holders' counsel and any managing underwriter copies of any such
supplement or amendment prior to its being used and/or filed with the SEC.
A registration statement will not be deemed to have been
effected as a Shelf Registration Statement unless such Shelf Registration
Statement has been declared effective by the SEC and the Company has complied in
all material respects with its obligations under this Agreement with respect
thereto; provided, however, that if, after a Shelf Registration Statement has
been declared effective, the offering of Registrable Securities pursuant to such
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or
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requirement of the Commission or any other governmental agency or court, such
Shelf Registration Statement will be deemed not to have become effective during
the period of such interference until the offering of Registrable Securities
pursuant to such Shelf Registration Statement may legally resume. If a Shelf
Registration Statement is deemed not to have been effected, then the Company
shall continue to be obligated to effect such Shelf Registration Statement
pursuant to this Section 2.
(b) Incidental Registration. If, at any time after the date
hereof, the Company proposes to file a registration statement under the
Securities Act (other than in connection with a Registration Statement on Form
S-4 or S-8 or any form substituting therefor or a registration statement
relating to issuances of securities other than Common Stock (or securities
convertible into Common Stock) by the Company) with respect to an offering of
any class of security by the Company for its own account or for the account of
any of its security holders, then the Company shall give written notice of such
proposed filing to the holders of the Registrable Securities at least 20 days
before the anticipated filing date, and such notice shall offer such holders the
opportunity to register such number of Registrable Securities as each such
holder may request; provided, however, that if such registration is not
underwritten and such Registrable Securities are then covered by an effective
Shelf Registration Statement, then the Company shall not have the obligation to
give such notice with respect to such Registrable Securities or register any
such Registrable Securities under this Section 2(b). Each holder of Registrable
Securities desiring to have its Registrable Securities registered under this
Section 2(b) shall so advise the Company in writing within 15 days after the
date of receipt of such notice from the Company (which request shall set forth
the number of Registrable Securities for which registration is requested). The
Company shall include in such Registration Statement all such Registrable
Securities so requested to be therein, and, if such registration is an
Underwritten Registration, the Company shall use commercially reasonable efforts
to cause the managing underwriter or underwriters to permit the Registrable
Securities requested to be included in the registration statement for such
offering to be included (on the same terms and conditions as similar securities
of the Company included therein to the extent appropriate); provided, however,
that if the managing underwriter or underwriters of such offering informs the
holder of such Registrable Securities that the total number of securities that
the Company, the holders of such Registrable Securities, or other persons
propose to include in such offering is such that the success of the offering
would be materially and adversely affected by inclusion of the securities
requested to be included, then the amount of securities to be offered for the
accounts of the Company, the holders of Registrable Securities and other holders
registering securities pursuant to registration rights shall be allocated as
follows:
(i) if such registration has been initiated by the
Company as a primary offering, first to the
securities sought to be included by the Company,
second to the Registrable Securities sought to be
included by the holders thereof and the securities
sought to be included by other holders of
registration rights whose rights are not expressly
subordinated to the rights of holders of Registrable
Securities, pro rata, on the basis of the number of
securities proposed to be included in such offering
by each such holder, and third to all other
securities sought to be included by holders of
registration rights whose rights are expressly
subordinated to the rights of holders of Registrable
Securities, pro rata, on the basis of the number of
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securities proposed to be included in such offering
by each such holder; and
(ii) if such registration has been initiated by another
holder of registration rights (other than pursuant to
Section 2(a) hereof), first to the securities sought
to be included by such demanding holder, second to
the Registrable Securities sought to be included by
the holders thereof and the securities sought to be
included by other holders of registration rights
whose rights are not expressly subordinated to the
rights of holders of Registrable Securities, pro
rata, on the basis of the number of securities
proposed to be included in such offering, and third
to the securities sought to be included by the
Company and to all other securities sought to be
included by other holders of registration rights
whose rights are expressly subordinated to the rights
of holders of Registrable Securities, pro rata, on
the basis of the number of securities proposed to be
included in such offering by the Company and each
such holder.
If the number of Registrable Securities sought to be
registered pursuant to this Section 2(b) by a holder of Registrable Securities
is reduced as provided above, such holder shall have the right to withdraw such
holder's request for registration with respect to all of the Registrable
Securities initially sought to be registered.
3. Hold-Back Agreements. Each holder of Registrable Securities agrees
that, in connection with an underwritten public offering of Common Stock, upon
the request of the Company or the principal underwriter managing such public
offering, no shares of Common Stock held by such holder may be sold, offered for
sale or otherwise disposed of without the prior written consent of the Company
or such underwriter, as the case may be, for up to one hundred eighty (180) days
after the effectiveness of the registration statement filed in connection with
such offering, if all of the Company's directors and officers agree to be
similarly bound, and releases from any and all lock-up agreements in connection
with such offering are granted on a pro-rata basis. This Section 3 shall no
longer apply six (6) months after the holder ceases to be an officer, director
or 5% or more stockholder of the Company, as the case may be.
4. Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 2 hereof, the Company will use
commercially reasonable efforts to effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company will use its
commercially reasonable efforts to, as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a
Registration Statement relating to the applicable registration on the
appropriate form under the Securities Act, which form shall be available for the
sale of the Registrable Securities in accordance with the intended method or
methods of distribution thereof and shall include all financial statements of
the Company, and use commercially reasonable efforts to cause such Registration
Statement to become effective; provided that before filing a Registration
Statement or Prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the filing of the Registration
Statement, the Company will furnish one counsel selected by the
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holders of a majority of the shares of Registrable Securities covered by such
Registration Statement, copies of all such documents proposed to be filed, which
documents, subject to compliance with applicable securities laws, will be
subject to the review of such counsel, and the Company will not file any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto (excluding any documents incorporated by reference) to which such
counsel shall reasonably object; and provided, further, that the Company shall
have the right to delay filing or effectiveness of a Registration Statement
filed pursuant to Section 2(a) hereto for up to 120 days if the Company's Board
of Directors determines, in good faith, that the filing or effectiveness thereof
could materially interfere with a pending extraordinary transaction involving
the Company or bona fide financing plans of the Company or would require
disclosure of information, the premature disclosure of which would not be in the
best interests of the Company, but no further delays will be permitted;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for the applicable period specified,
or such shorter period which will terminate when all Registrable Securities
covered by such Registration Statement have been sold (and in connection
therewith provide the Investor with the right to review and reasonably approve
the description of the "plan of distribution" therein); cause the Prospectus to
be supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus; the Company shall not be deemed to have used
commercially reasonable efforts to keep a Registration Statement effective
during the applicable period if it voluntarily takes any action that would
result in selling holders of the Registrable Securities covered thereby not
being able to sell such Registrable Securities during that period unless such
action is required under applicable law; provided that the foregoing shall not
apply to actions taken by the Company in good faith and for valid business
reasons, including without limitation, merger, acquisition or divesture of
assets or other material transaction, so long as the Company promptly thereafter
complies with the requirements of Section 4(j) hereof, if applicable;
(c) notify the selling holders of Registrable Securities
promptly, and (if requested by any such Person) confirm such advice in writing,
(1) when the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and with respect to the Registration Statement or any
post-effective amendment, when the same has become effective, (2) of any request
by the SEC for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (3) of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (4) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (5) of the happening of any
event which makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement, the Prospectus
or any document incorporated therein by reference in order to make the
statements therein not misleading;
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(d) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e) furnish to each selling holder of Registrable Securities,
without charge, at least one signed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference);
(f) deliver to each selling holder of Registrable Securities,
without charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Person; the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the selling holders
of Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto;
(g) prior to any public offering of Registrable Securities,
use commercially reasonable efforts to register or qualify or cooperate with the
selling holders of Registrable Securities and their respective counsel in
connection with the registration or qualification of such Registrable Securities
for offer and sale under the securities or blue sky laws of such jurisdictions
as any seller reasonable requests in writing and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement;
(h) cooperate with the selling holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends except as required by the Certificate of Incorporation of the Company;
and enable such Registrable Securities to be in such denominations and
registered in such names as the holders of such Registrable Securities may
request at least two business days prior to any sale of Registrable Securities
(i) use commercially reasonable efforts to cause the
Registrable Securities covered by the applicable Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
(j) upon the occurrence of any event contemplated by Section
4(c)(5) above, subject to the Company's ability to postpone the preparation of
such supplement or amendment pending the public announcement of a material event
such as a merger or acquisition or divestiture of assets, prepare a supplement
or post-effective amendment to the Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
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(k) cause all shares owned by the holders of Registrable
Securities covered by the Registration Statement to be listed on each securities
exchange on which similar securities issued by the Company are then listed;
(l) make available for inspection by representatives of the
holders of the Registrable Securities and any attorney or accountant retained by
the sellers, all financial and other records, pertinent corporate documents and
properties of the Company and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
representative, attorney or accountant in connection with such registration;
provided that any records, information or documents that are designated by the
Company in writing as confidential shall be kept confidential by such Persons
unless disclosure of such records, information or documents is required by court
or administrative order;
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities as the Company may
from time to time reasonably request in writing and to enter into agreements
related to the distribution of the Registrable Securities that are designed to
ensure compliance with the Exchange Act.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 4(j) hereof, such
holder will forthwith discontinue disposition of Registrable Securities until
such holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(j) hereof, or until it is advised in writing (the
"ADVICE") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company such holder
will deliver to the Company (at the Company's expense), all copies, other than
permanent file copies then in such holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
5. Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation: all registration and filing fees; all fees associated with a
required listing of the Registrable Securities on any securities exchange; fees
and expenses with respect to filings required to be made with the NASD; fees and
expenses of compliance with securities or blue sky laws (including fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities and determination of their
eligibility for investment under the laws of such jurisdictions as the managing
underwriters or holders of a majority of the Registrable Securities being sold
may designate); printing expenses, messenger, telephone and delivery expenses;
fees and disbursements of counsel for the Company and customary fees and
expenses for independent certified public accountants retained by the Company
(including the expenses of any comfort letters or costs associated with the
delivery by independent certified public accountants of a comfort letter or
comfort letters requested pursuant to Section 4(m) hereof); securities acts
liability insurance, if the Company so desires; all internal expenses of the
Company (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties); the expense of
any annual audit; and the fees and expenses of any Person, including special
experts, retained by the Company (all such expenses being herein called
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"REGISTRATION EXPENSES") will be borne by the Company regardless of whether the
Registration Statement becomes effective. The Company shall not have any
obligation to pay any underwriting fees, discounts, or commissions attributable
to the sale of Registrable Securities or fees and expenses of counsel to the
holders of Registrable Securities.
6. Indemnification Contribution.
(a) Indemnification by Company. The Company agrees to
indemnify and hold harmless each holder of Registrable Securities and its
partners, and their respective officers, directors, employees, and Affiliates,
and each Person who controls such Person (within the meaning of section 15 of
the Securities Act or Section 20 of the Exchange Act) against all losses,
claims, damages, liabilities and expenses arising out of or based (i) upon any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus (including any
amendments or supplements thereto), (ii) any omission or alleged omission to
state therein a material required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any violation by the Company of the
Securities Act, any state securities or "blue sky" laws or any rule or
regulation thereunder, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by the holders of
Registrable Securities expressly for use therein. The Company will also
indemnify underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their officers and
directors and each Person who controls such Persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the holders of
Registrable Securities, if requested.
(b) Indemnification by Holder of Registrable Securities. Each
holder of Registrable Securities agrees to indemnify and hold harmless the
Company, each other holder and their respective directors, officers, employees,
and Affiliates and each Person who controls the Company and as such other Person
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue statement of a material fact or any omission of a
material fact required to be stated in the Registration Statement or Prospectus
or preliminary prospectus or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder to the Company specifically for inclusion in such Registration
Statement or Prospectus. In no event shall the liability of any selling holder
of Registrable Securities hereunder exceed the lesser of (i) that proportion of
the losses, claims, damages, expenses and liabilities against which is equal to
such selling holder's proportion of the total securities sold under such
registration statement, and (ii) the dollar amount of the proceeds received by
such holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation. The Company shall be entitled to receive indemnities
from underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same extent as
provided above with respect to information so furnished in writing by such
Persons specifically for inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (i) give prompt notice to the
indemnifying party of any claim
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with respect to which it seeks indemnification and (ii) permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory
to the indemnified party; provided, however, that any Person entitled to
indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such Person unless (a) the indemnifying party
has agreed to pay such fees or expenses, (b) the indemnifying party shall have
failed to assume the defense of such claim and employ counsel reasonably
satisfactory to such Person or (c) based upon advice of counsel of such Person,
a conflict of interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not be
permitted to assume the defense of such claim on behalf of such Person), in each
of which events the fees and expenses of such counsel shall be at the expense of
the indemnifying party. The indemnifying party will not be subject to any
liability for any settlement made without its consent (but such consent will not
be unreasonably withheld), but if settled with its written consent, or if there
be a final judgment for the plaintiff in any such action or proceeding, the
indemnifying party shall indemnify and hold harmless the indemnified parties
from and against any loss or liability (to the extent stated above) by reason of
such settlement or judgment. No indemnified party will be required to 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.
(d) Contribution. If for any reason the indemnification
provided for in the preceding clauses (a) and (b) is unavailable to an
indemnified party or insufficient to hold it harmless as contemplated by the
preceding clauses (a) and (b), then each indemnifying party shall contribute to
the amount paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and each such
indemnifying party, but also the relative fault of the indemnified party and
each such indemnifying party, as well as any other relevant equitable
considerations, provided, that no holder of Registrable Securities shall be
required to contribute an amount which exceeds the lesser of (i) that proportion
of the losses, claims, damages, expenses and liabilities against which is equal
to such selling holder's proportion of the total securities sold under such
registration statement, and (ii) the dollar amount of the proceeds received by
such holder with respect to the sale of the Registrable Securities giving rise
to such indemnification obligation. The relative fault of the Company on the one
hand and of the selling holders on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
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
misrepresentations.
7. Rule 144. The Company hereby agrees that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder, and it will take
such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such
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holder 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 SEC. Upon the 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 information and
requirements.
8. Participation in Underwritten Registrations. No Person may
participate in any Underwritten Registration hereunder unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements. Nothing in this Section 8
shall be construed to create any additional rights regarding the registration of
Registrable Securities in any Person otherwise than as set forth herein.
9. Miscellaneous.
(a) Remedies. Each party hereto, in addition to being entitled
to exercise all rights provided herein or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement to the extent available under applicable law. Each party hereto 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.
(b) Amendment and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given without the written consent of the Company and holders of at
least 75% of the then outstanding Registrable Securities.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Investor, at the most current address
given by the Investor to the Company, in accordance with the provisions
of this subsection, which address initially is 0000 X. Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000;
(ii) if the Company, at the most current address
given by the Company to the Investor, in accordance with the provision
of this subsection, which address initially is 000 Xxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: Chairman; and
(iii) if to any transferee, at the address given by
such transferee to the Company in accordance with the provisions of
this subsection.
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(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent holders of Registrable Securities; provided that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the
Nonqualified Stock Option Agreement; and provided, further, that holders of
Registrable Securities may not assign their rights under this Agreement except
in connection with the permitted transfer of Registrable Securities and then
only insofar as relates to such Registrable Securities. If any transferee shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and such Person shall be entitled to receive the benefits
hereof.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning thereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(i) Entire Agreement. This Agreement and the other related
agreements executed concurrently herewith by the Company and the Investor are
intended by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. Such
agreements supersede all prior agreements and understandings between the parties
with respect to such subject matter.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first set forth above.
THE COMPANY:
LIBERTE INVESTORS INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Chairman
INVESTOR:
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------------------
Xxxxxx X. Xxxxxxx
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