REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (this
"Agreement"), dated as of November 10, 1997
by and between The Aegis Consumer Funding
Group, Inc., a Delaware corporation (the
"Company"), and Greenwich Capital Financial
Products, Inc. (the "Holder").
RECITALS
WHEREAS, the Company, as borrower,
Aegis Consumer Finance, Inc. and Aegis Auto
Finance, Inc., as guarantors and the Holder
have heretofore entered into an Amended and
Restated Credit Agreement dated as of June
23, 1997, to a Credit Agreement (as so
amended and restated, the "Credit
Agreement"), dated as of May 16, 1996, and in
connection therewith the Company granted
certain warrants to purchase Common Stock the
"warrants"); and
WHEREAS, pursuant to that certain
Securities Purchase Agreement dated as of the
date hereof, by and between the Company and
the Holder (the "Purchase Agreement"), the
Holder has agreed to deliver to the Company
such documents as are necessary to terminate
such Holder's rights under the Credit
Agreement (other than the provisions of
paragraphs (iii) and (iv) of Section 10.04
thereof, which shall survive such termination
and shall remain in full force and effect in
accordance with the terms of the Credit
Agreement) and the Company has agreed to (i)
issue to the Holder in exchange therefor
shares of Preferred Stock having an aggregate
stated value of $4,000,000 and (ii) to cause
any shares of the Preferred Stock or shares
of Common Stock issued upon redemption of
shares of Preferred Stock or upon exercise of
warrants to purchase Common Stock issued upon
redemption of shares of Preferred Stock, to
be registered pursuant to the Securities Act;
and
WHEREAS, the parties hereto hereby
desire to set forth the Holder's rights and
the Company's obligations to cause the
registration of the Registrable Securities
pursuant to the Securities Act;
NOW, THEREFORE, in consideration of
the termination by the Holder of the Credit
Agreement pursuant to the Purchase Agreement,
and for other good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties
hereto agree as follows:
Section 1. Definitions and
Usage.
As used in this Agreement:
1.1. Definitions.
Agent. "Agent" means the
principal placement agent on an agented
placement of Registrable Securities.
Commission. "Commission"
shall mean the Securities and Exchange
Commission.
Common Stock. "Common Stock"
shall mean (i) the common stock, par value
$.01 per share, of the Company, and (ii)
shares of capital stock of the Company issued
by the Company in respect of or in exchange
for shares of such common stock in connection
with any stock dividend or distribution,
stock split-up, recapitalization,
recombination or exchange by the Company
generally of shares of such common stock.
Continuously Effective.
"Continuously Effective," with respect to a
specified registration statement, shall mean
that it shall not cease to be effective and
available for Transfers of Registrable
Securities thereunder for longer than either
(i) any ten (10) consecutive business days,
or (ii) an aggregate of fifteen (15) business
days during the period specified in the
relevant provision of this Agreement.
Demanding Holders. "Demanding
Holders" shall have the meaning set forth in
Section 2.1(i).
Demand Registration. "Demand
Registration" shall have the meaning set
forth in Section 2.1(i).
Exchange Act. "Exchange Act"
shall mean the Securities Exchange Act of
1934, as amended.
Holders. "Holders" shall mean
the Person named as the Holder in the first
paragraph of this Agreement and Transferees
of such Person's Registrable Securities with
respect to the rights that such Transferees
shall have acquired in accordance with
Section 8, at such times as such Persons
shall own Registrable Securities.
Majority Selling Holders.
"Majority Selling Holders" shall mean those
Selling Holders whose Registrable Securities
included in such registration represent a
majority of the Registrable Securities of all
Selling Holders included therein.
Person. "Person" shall mean
any individual, corporation, partnership,
joint venture, association, joint-stock
company, limited liability company, trust,
unincorporated organization or government or
other agency or political subdivision
thereof.
Piggyback Registration.
"Piggyback Registration" shall have the
meaning set forth in Section 3.
Preferred Stock. "Preferred
Stock" shall mean (i) the Class E and Class F
Redeemable Preferred Stock, par value $.10
per share, stated value $1,000 per share, of
the Company and (ii) shares of capital stock
of the Company issued by the Company in
respect of or in exchange for shares of such
preferred stock in connection with any stock
dividend or distribution, stock split-up,
recapitalization, recombination or exchange
by the Company generally of shares of such
preferred stock.
Purchase Agreement. "Purchase
Agreement" shall have the meaning set forth
in the Recitals.
Register, Registered and
Registration. "Register", "registered", and
"registration" shall refer to a registration
effected by preparing and filing a
registration statement or similar document in
compliance with the Securities Act, and the
declaration or ordering by the Commission of
effectiveness of such registration statement
or document.
Registrable Securities.
"Registrable Securities" shall mean, subject
to Section 8 and Section 10.3: (i) the Shares
owned by a Holder on the date of
determination, (ii) any shares of Common
Stock or Preferred Stock or other securities
issued as (or issuable upon the conversion or
exercise of any warrant, right or other
security which is issued as) a dividend or
other distribution with respect to, or in
exchange by the Company generally for, or in
replacement by the Company generally of, such
Shares; and (iii) any securities issued in
exchange for Shares in any merger or
reorganization of the Company; provided,
however, that Registrable Securities shall
not include any Shares which have theretofore
been registered and sold pursuant to the
Securities Act or which have been sold to the
public pursuant to Rule 144 or any similar
rule promulgated by the Commission pursuant
to the Securities Act, and, provided further,
the Company shall have no obligation under
Section 2 or Section 3 to register any
Registrable Securities of a Holder if the
Company shall deliver to the Holder
requesting such registration an opinion of
counsel reasonably satisfactory to such
Holder and its counsel to the effect that the
proposed sale or disposition of all of the
Registrable Securities for which registration
was requested does not require registration
under the Securities Act for a sale or
disposition in a single public sale, and
offers to remove any and all legends
restricting transfer from the certificates
evidencing such Registrable Securities. For
purposes of this Agreement, without
limitation, a Person will be deemed to be a
holder or owner of Registrable Securities
whenever such Person has the then-existing
right to acquire such Registrable Securities
(by conversion, purchase or otherwise),
whether or not such acquisition has actually
been effected.
Registrable Securities then
outstanding. "Registrable Securities then
outstanding" shall mean, with respect to a
specified determination date, the Registrable
Securities owned by all Holders on such date.
Registration Expenses.
"Registration Expenses" shall have the
meaning set forth in Section 6.1.
Securities Act. "Securities
Act" shall mean the Securities Act of 1933,
as amended.
Selling Holders. "Selling
Holders" shall mean, with respect to a
specified registration pursuant to this
Agreement, Holders whose Registrable
Securities are included in such registration.
Shares. "Shares" shall mean
the shares of Preferred Stock and the shares
of Common Stock issuable upon redemption of
the Preferred Stock or upon the exercise of
any warrants issuable upon the redemption of
the Preferred Stock.
Transfer. "Transfer" shall
mean and include the act of selling, giving,
transferring, creating a trust (voting or
otherwise), assigning or otherwise disposing
of Registrable Securities (other than
pledging, hypothecating or otherwise
transferring as security) (and correlative
words shall have correlative meanings);
provided however, that any transfer or other
disposition upon foreclosure or other
exercise of remedies of a secured creditor
after an event of default under or with
respect to a pledge, hypothecation or other
transfer as security shall constitute a
"Transfer".
Underwriters' Representative.
"Underwriters' Representative" shall mean the
managing underwriter, or, in the case of a
co-managed underwriting, the managing
underwriter designated as the Underwriters'
Representative by the co-managers.
Violation. "Violation" shall
have the meaning set forth in Section 7.1.
1.2. Usage.
(i) References to a Person
are also references to its assigns and
successors in interest (by means of merger,
consolidation or sale of all or substantially
all the assets of such Person or otherwise,
as the case may be).
(ii) References to Registrable
Securities "owned" by a Holder shall include
Registrable Securities beneficially owned by
such Person but which are held of record in
the name of a nominee, trustee, custodian, or
other agent, but shall exclude Shares held by
a Holder in a fiduciary capacity for
customers of such Person.
(iii) References to a
document are to it as amended, waived and
otherwise modified from time to time and
references to a statute or other governmental
rule are to it as amended and otherwise
modified from time to time (and references to
any provision thereof shall include
references to any successor provision).
(iv) References to Sections
or to Schedules or exhibits are to sections
hereof or schedules or exhibits hereto,
unless the context otherwise requires.
(v) The definitions set forth
herein are equally applicable both to the
singular and plural forms and the feminine,
masculine and neuter forms of the terms
defined.
(vi) The term "including" and
correlative terms shall be deemed to be
followed by "without limitation" whether or
not followed by such words or words of like
import.
(vii) The term "hereof" and
similar terms refer to this Agreement as a
whole.
(viii) The "date of" any
notice or request given pursuant to this
Agreement shall be determined in accordance
with Section 13.
Section 2. Demand Registration.
2.1.
(i) The Company covenants and
agrees with the Holders, that upon written
request of Holders that own an aggregate of
51% or more of the Registrable Securities
then outstanding (the "Demanding Holders"),
the Company shall cause there to be filed
with the Commission a registration statement
meeting the requirements of the Securities
Act (a "Demand Registration"), and each
Demanding Holder shall be entitled to have
included therein (subject to Section 2.7) all
or such number of such Demanding Holder's
Registrable Securities as the Demanding
Holder shall request in writing. Any request
made pursuant to this Section 2.1 shall be
addressed to the attention of the Secretary
of the Company, and shall specify the number
of Registrable Securities to be registered,
the intended methods of disposition thereof
and that the request is for a Demand
Registration pursuant to this Section 2.1(i).
(ii) Whenever the Company
shall have received a demand pursuant to
Section 2.1(i) to effect the registration of
any Registrable Securities, the Company shall
promptly give written notice of such proposed
registration to all Holders. Any such Holder
may, within twenty (20) days after receipt of
such notice, request in writing that all of
such Holder's Registrable Securities, or any
portion thereof designated by such Holder, be
included in the registration.
2.2. Following receipt of
a request for a Demand Registration, the
Company shall:
(i) File the registration
statement with the Commission as promptly as
practicable, and shall use the Company's best
efforts to have the registration statement
declared effective under the Securities Act
as soon as reasonably practicable, in each
instance giving due regard to the need to
prepare current financial statements, conduct
due diligence and complete other actions that
are reasonably necessary to effect a
registered public offering.
(ii) Use the Company's best
efforts to keep the relevant registration
statement Continuously Effective for up to
180 days or until such earlier date as of
which all the Registrable Securities under
such Registration Statement shall have been
disposed of in the manner described in the
Registration Statement. Notwithstanding the
foregoing, if for any reason the
effectiveness of a registration pursuant to
this Section 2 is suspended, the foregoing
period shall be extended by the aggregate
number of days of such suspension.
2.3. The Company shall be
obligated to effect no more than two Demand
Registrations. For purposes of the preceding
sentence, registration shall not be deemed to
have been effected (i) unless a registration
statement with respect thereto has become
effective, (ii) if after such registration
statement has become effective, such
registration or the related offer, sale or
distribution of Registrable Securities
thereunder is interfered with by any stop
order, injunction or other order or
requirement of the Commission or other
governmental agency or court for any reason
not attributable to the Selling Holders and
such interference is not thereafter
eliminated, or (iii) if reasonable and
customary conditions to closing applicable to
the Company specified in the underwriting
agreement, if any, entered into in connection
with such registration are not satisfied or
waived. If the Company shall have complied
with its obligations under this Agreement, a
right to demand a registration pursuant to
this Section 2 shall be deemed to have been
satisfied upon the earlier of (x) the date as
of which all of the Registrable Securities
included therein shall have been disposed of
pursuant to the Registration Statement, and
(y) the date as of which such Demand
Registration shall have been Continuously
Effective for a period of 180 days.
2.4. A registration
pursuant to this Section 2 shall be on such
appropriate registration form of the
Commission as shall (i) be selected by the
Company and be reasonably acceptable to the
Majority Selling Holders, and (ii) permit the
disposition of the Registrable Securities in
accordance with the intended method or
methods of disposition specified in the
request pursuant to Section 2.1(i).
2.5. If any registration
pursuant to Section 2 involves an
underwritten offering (whether on a "firm",
"best efforts" or "all reasonable efforts"
basis or otherwise), or an agented offering,
the Majority Selling Holders, shall have the
right to select the underwriter or
underwriters and manager or managers to
administer such underwritten offering or the
placement agent or agents for such agented
offering; provided, however, that each Person
so selected shall be reasonably acceptable to
the Company.
2.6. Whenever the Company
shall effect a registration pursuant to this
Section 2 in connection with an underwritten
offering by one or more Selling Holders of
Registrable Securities: (i) if such Selling
Holders have requested the inclusion therein
of more than one class of Registrable
Securities, and the Underwriters'
Representative or Agent advises each such
Selling Holder in writing that, in its
opinion, the inclusion of more than one class
of Registrable Securities would adversely
affect such offering, the Demanding Holders
holding at least a majority of the
Registrable Securities proposed to be sold
therein by them shall decide which class of
Registrable Securities shall be included in
such offering and the related registration,
and the other class shall be excluded; and
(ii) if the Underwriters' Representative or
Agent advises each such Selling Holder in
writing that, in its opinion, the amount of
securities requested to be included in such
offering (whether by Selling Holders or
others) exceeds the amount which can be sold
in such offering within a price range
acceptable to the Majority Selling Holders,
securities shall be included in such offering
and the related registration to the extent of
the amount which can be sold within such
price range.
Section 3. Piggyback
Registration.
3.1. If at any time the
Company proposes to register (including for
this purpose a registration effected by the
Company for shareholders of the Company other
than the Holders) securities under the
Securities Act in connection with a public
offering solely for cash on Form X-0, X-0 or
S-3 (or any replacement or successor forms),
the Company shall promptly give each Holder
of Registrable Securities written notice of
such registration (a "Piggyback
Registration"). Upon the written request of
each Holder given within 20 days following
the date of such notice, the Company shall
cause to be included in such registration
statement and use its best efforts to cause
to be registered under the Securities Act all
the Registrable Securities that each such
Holder shall have requested to be registered.
The Company shall have the absolute right to
withdraw or cease to prepare or file any
registration statement for any offering
referred to in this Section 3 without any
obligation or liability to any Holder.
3.2. If the Underwriters'
Representative or Agent shall advise the
Company in writing (with a copy to each
Selling Holder) that, in its opinion, the
amount of Registrable Securities requested to
be included in such registration would
materially adversely affect such offering, or
the timing thereof, then the Company will
include in such registration, to the extent
of the amount and class which the Company is
so advised can be sold without such material
adverse effect in such offering: first, all
securities proposed to be sold by the Company
for its own account; second, the Registrable
Securities requested to be included in such
registration by Holders pursuant to this
Section 3, and all other securities being
registered pursuant to the exercise of
contractual rights comparable to the rights
granted in this Section 3, pro rata based on
the estimated gross proceeds from the sale
thereof; provided, however, that the Holders
of Registrable Securities may have their
respective proportions of included securities
reduced below their pro rata portion to the
extent, but only to the extent, that such
reduction is required by the Registration
Rights Agreement dated as of January 29, 1996
by and among the Company, Xxxxxx Investments,
Inc. and the subscribers to the Company's
Series C Preferred Stock; and third, all
other securities requested to be included in
such registration.
3.3. Each Holder shall be
entitled to have its Registrable Securities
included in an unlimited number of Piggyback
Registrations pursuant to this Section 3.
3.4. If the Company has
previously filed a registration statement
with respect to Registrable Securities
pursuant to Section 2, and if such previous
registration has not been withdrawn or
abandoned, the Company will not file or cause
to be effected any other registration of any
of its equity securities or securities
convertible or exchangeable into or
exercisable for its equity securities under
the Securities Act (except on Form S-8 or any
successor form), whether on its own behalf or
at the request of any holder or holders of
such securities, until a period of 90 days
has elapsed from the effective date of such a
previous registration.
Section 4. Registration
Procedures. Whenever required under Section
2 or Section 3 to effect the registration of
any Registrable Securities, the Company
shall, as expeditiously as practicable:
4.1. Prepare and file
with the Commission a registration statement
with respect to such Registrable Securities
and use the Company's best efforts to cause
such registration statement to become
effective; provided, however, that before
filing a registration statement or prospectus
or any amendments or supplements thereto,
including documents incorporated by reference
after the initial filing of the
registration statement and prior to
effectiveness thereof, the Company shall
furnish to one firm of counsel for the
Selling Holders (selected by the Majority
Selling Holders) copies of all such documents
in the form substantially as proposed to be
filed with the Commission at least four (4)
business days prior to filing for review and
comment by such counsel and if such counsel
reasonably disagrees with the Company as to
the contents of any such disclosure, the
Selling Holders may withdraw any Shares to be
so registered from any such filing; provided,
however, that a demand registration shall not
be deemed to have been effected for purposes
of Section 2 in connection with any
registration statement from which such Shares
are so withdrawn.
4.2. Prepare and file
with the Commission such amendments and
supplements to such registration statement
and the prospectus used in connection with
such registration statement as may be
necessary to comply with the provisions of
the Securities Act and rules thereunder with
respect to the disposition of all securities
covered by such registration statement. If
the registration is for an underwritten
offering, the Company shall amend the
registration statement or supplement the
prospectus whenever required by the terms of
the underwriting agreement entered into
pursuant to Section 5.2. In the event that
any Registrable Securities included in a
registration statement subject to, or
required by, this Agreement remain unsold at
the end of the period during which the
Company is obligated to use its best efforts
to maintain the effectiveness of such
registration statement, the Company may file
a post-effective amendment to the
registration statement for the purpose of
removing such Securities from registered
status.
4.3. Furnish to each
Selling Holder of Registrable Securities,
without charge, such number of copies of the
registration statement, any pre-effective or
post-effective amendment thereto, the
prospectus, including each preliminary
prospectus and any amendments or supplements
thereto, in each case in conformity with the
requirements of the Securities Act and the
rules thereunder, and such other related
documents as any such Selling Holder may
reasonably request in order to facilitate the
disposition of Registrable Securities owned
by such Selling Holder.
4.4. Use the Company's
best efforts (i) to register and qualify the
securities covered by such registration
statement under such other securities or Blue
Sky laws of such states or jurisdictions as
shall be reasonably requested by the
Underwriters' Representative or Agent (as
applicable, or if inapplicable, the Majority
Selling Holders), and (ii) to obtain the
withdrawal of any order suspending the
effectiveness of a registration statement, or
the lifting of any suspension of the
qualification (or exemption from
qualification) of the offer and transfer of
any of the Registrable Securities in any
jurisdiction, at the earliest possible
moment; provided, however, that the Company
shall not be required in connection therewith
or as a condition thereto to qualify to do
business or to file a general consent to
service of process in any such states or
jurisdictions.
4.5. In the event of any
underwritten or agented offering, enter into
and perform the Company's obligations under
an underwriting or agency agreement
(including indemnification and contribution
obligations to underwriters or agents), in
usual and customary form, with the managing
underwriter or underwriters of or agents for
such offering. The Company shall also
cooperate with the Majority Selling Holders
and the Underwriters' Representative or Agent
for such offering in the marketing of the
Registerable Shares, including making
available the Company's officers,
accountants, counsel, premises, books and
records for such purpose, but the Company
shall not be required to incur any
out-of-pocket expense pursuant to this
sentence.
4.6. Promptly notify each
Selling Holder of any stop order issued or
threatened to be issued by the Commission in
connection therewith and take all reasonable
actions required to prevent the entry of such
stop order or to remove it if entered.
4.7. Make generally
available to the Company's security holders
copies of all periodic reports, proxy
statements, and other information referred to
in Section 10.1 and an earnings statement
satisfying the provisions of Section 11(a) of
the Securities Act no later than 90 days
following the end of the 12-month
period,beginning with the first month of the
Company's first fiscal quarter commencing
after the effective date of each registration
statement filed pursuant to this Agreement.
4.8. Make available for
inspection by any Selling Holder, any
underwriter participating in such offering
and the representatives of such Selling
Holder and Underwriter (but not more than one
firm of counsel to such Selling Holders), all
financial and other information as shall be
reasonably requested by them, and provide the
Selling Holder, any underwriter participating
in such offering and the representatives of
such Selling Holder and Underwriter the
opportunity to discuss the business affairs
of the Company with its principal executive
officers and independent public accountants
who have certified the audited financial
statements included in such registration
statement, in each case all as necessary to
enable them to exercise their due diligence
responsibility under the Securities Act;
provided, however, that information that the
Company determines, in good faith, to be
confidential and which the Company advises
such Person in writing is confidential shall
not be disclosed unless such Person signs a
confidentiality agreement reasonably
satisfactory to the Company or the related
Selling Holder of Registrable Securities
agrees to be responsible for such Person's
breach of confidentiality on terms reasonably
satisfactory to the Company.
4.9. Use the Company's
best efforts to obtain a so-called "comfort
letter" from its independent public
accountants, and legal opinions of counsel to
the Company addressed to the Underwriters
and, if such counsel is also representing the
Selling Holders, to such Selling Holders, in
customary form and covering such matters of
the type customarily covered by such letters.
The Company shall furnish to each Selling
Holder copies of any such comfort letter or
legal opinion that is not otherwise addressed
to such Selling Holder. Delivery of any such
opinion or comfort letter shall be subject to
the recipient furnishing such written
representations or acknowledgments as are
customarily provided by selling shareholders
who receive such comfort letters or opinions.
4.10. Provide and cause to
be maintained a transfer agent and registrar
for all Registrable Securities covered by
such registration statement from and after a
date not later than the effective date of
such registration statement.
4.11. Use all reasonable
efforts to cause the Registrable Securities
covered by such registration statement (i) if
the Common Stock or Preferred Stock is then
listed on a securities exchange or included
for quotation in a recognized trading market,
to continue to be so listed or included for a
reasonable period of time after the offering,
and (ii) to be registered with or approved by
such other United States or state
governmental agencies or authorities as may
be necessary by virtue of the business and
operations of the Company to enable the
Selling Holders of Registrable Securities to
consummate the disposition of such
Registrable Securities.
4.12. Use the Company's
reasonable efforts to provide a CUSIP number
for the Registrable Securities prior to the
effective date of the first registration
statement including Registrable Securities.
4.13. Take such other
actions as are reasonably required in order
to expedite or facilitate the disposition of
Registrable Securities included in each such
registration.
Section 5. Holders'
Obligations. It shall be a condition
precedent to the obligations of the Company
to take any action pursuant to this Agreement
with respect to the Registrable Securities of
any Selling Holder of Registrable Securities
that such Selling Holder shall:
5.1. Furnish to the
Company such information regarding such
Selling Holder, the number of the Registrable
Securities owned by it, and the intended
method of disposition of such securities and
such other information known to such Selling
Holder as shall reasonably be required to
effect the registration of such Selling
Holder's Registrable Securities, and to
cooperate with the Company in preparing such
registration.
5.2. Agree to sell their
Registrable Securities to the underwriters at
the same price and on substantially the same
terms and conditions as the Company or the
other Persons on whose behalf the
registration statement was being filed have
agreed to sell their securities, and to
execute the underwriting agreement agreed to
by the Majority Selling Holders (in the case
of a registration under Section 2) or the
Company (in the case of a registration under
Section 3).
Section 6. Expenses of
Registration. Expenses in connection with
registrations pursuant to this Agreement
shall be allocated and paid as follows:
6.1. With respect to each
Demand Registration, the Company shall bear
and pay all expenses incurred in connection
with any registration, filing, or
qualification of Registrable Securities with
respect to such Demand Registration for each
Selling Holder (which right may be assigned
to any Person to whom Registrable Securities
are Transferred as permitted by Section 8),
including all registration, filing and
National Association of Securities Dealers,
Inc. fees, 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 the Company's
independent public accountants, including the
expenses of "cold comfort" letters required
by or incident to such performance and
compliance, and, in the case of a demand
registration pursuant to Section 2, the
reasonable fees and disbursements of one firm
of counsel for the Selling Holders of
Registrable Securities (selected by Demanding
Holders owning a majority of the Registrable
Securities owned by Demanding Holders to be
included in a Demand Registration) (the
"Registration Expenses"), but excluding
underwriting discounts and commissions
relating to Registrable Securities (which
shall be paid on a pro rata basis by the
Selling Holders) and any fees and
disbursements of counsel for the Selling
Holders of Registrable Securities in any
registration pursuant to Section 3, provided,
however, that the Company shall not be
required to pay for any expenses of any
registration proceeding begun pursuant to
Section 2 if the registration is subsequently
withdrawn at the request of the Majority
Selling Holders (in which case all Selling
Holders shall bear such expense), unless
Holders whose Registrable Securities
constitute a majority of the Registrable
Securities then outstanding agree that such
withdrawn registration shall constitute one
of the demand registrations under Section 2
hereof.
6.2. The Company shall
bear and pay all Registration Expenses
incurred in connection with any Piggyback
Registrations pursuant to Section 3. for each
Selling Holder (which right may be
Transferred to any Person to whom Registrable
Securities are Transferred as permitted by
Section 8), but excluding underwriting
discounts and commissions relating to
Registrable Securities (which shall be paid
on a pro rata basis by the Selling Holders of
Registrable Securities).
6.3. Any failure of the
Company to pay any Registration Expenses as
required by this Section 6 shall not relieve
the Company of its obligations under this
Agreement.
Section 7. Indemnification;
Contribution. If any Registrable Securities
are included in a registration statement
under this Agreement:
7.1. To the extent
permitted by applicable law, the Company
shall indemnify and hold harmless each
Selling Holder, each Person, if any, who
controls such Selling Holder within the
meaning of the Securities Act, and each
officer, director, partner, and employee of
such Selling Holder and such controlling
Person, against any and all losses, claims,
damages, liabilities and expenses (joint or
several), including attorneys, fees and
disbursements and expenses of investigation,
incurred by such party pursuant to any actual
or threatened action, suit, proceeding or
investigation, or to which any of the
foregoing Persons may become subject under
the Securities Act, the Exchange Act or other
federal or state laws, insofar as such
losses, claims, damages, liabilities and
expenses arise out of or are based upon any
of the following statements, omissions or
violations (collectively a "Violation"):
(i) Any untrue statement or
alleged untrue statement of a material fact
contained in such registration statement,
including any preliminary prospectus or final
prospectus contained therein, or any
amendments or supplements thereto;
(ii) 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
(iii) Any violation or
alleged violation by the Company of the
Securities Act, the Exchange Act, any
applicable state securities law or any rule
or regulation promulgated under the
Securities Act, the Exchange Act or any
applicable state securities law;
provided, however, that the indemnification
required by this Section 7.1 shall not apply
to amounts paid in settlement of any such
loss, claim, damage, liability or expense if
such settlement is effected without the
consent of the Company (which consent shall
not be unreasonably withheld), nor shall the
Company be liable in any such case for any
such loss, claim, damage, liability or
expense to the extent that it arises out of
or is based upon a Violation which (i) occurs
in reliance upon and in conformity with
written information furnished to the Company
by the indemnified party expressly for use in
connection with such registration or (ii)
arises from an untrue statement or omission
of a material fact contained in a preliminary
prospectus if such untrue statement or
omission was corrected in a subsequent
preliminary prospectus or the final
prospectus and copies of any such subsequent
preliminary prospectus or final prospectus
have been made available by the Company to
the Underwriters (or the Selling Holders in
the case of a non-underwritten offering).
The Company shall also indemnify
underwriters, selling brokers, dealer
managers and similar securities industry
professionals participating in the
distribution, their officers, directors,
agents and employees 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 Selling Holders.
7.2. To the extent
permitted by applicable law, each Selling
Holder shall indemnify and hold harmless the
Company, each of its directors, each of its
officers who shall have signed the
registration statement, each Person, if any,
who controls the Company within the meaning
of the Securities Act, any other Selling
Holder, any controlling Person of any such
other Selling Holder and each officer,
director, partner, and employee of such other
Selling Holder and such controlling Person,
against any and all losses, claims, damages,
liabilities and expenses (joint and several),
including attorneys' fees and disbursements
and expenses of investigation, incurred by
such party pursuant to any actual or
threatened action, suit, proceeding or
investigation, or to which any of the
foregoing Persons may otherwise become
subject under the Securities Act, the
Exchange Act or other federal or state laws,
insofar as such losses, claims, damages,
liabilities and expenses arise out of or are
based upon any Violation, in each case to the
extent (and only to the extent) that such
Violation (i) occurs in reliance upon and in
conformity with written information furnished
by such Selling Holder expressly for use in
connection with such registration or (ii)
arises out of the failure to distribute by
the Selling Holders (in the case of a
non-underwritten offering) of any preliminary
prospectus or prospectus made available by
the Company to such Selling Holders which
corrects an untrue statement or omission of a
material fact contained in a previous
preliminary prospectus; provided, however,
that (x) the indemnification required by this
Section 7.2 shall not apply to amounts paid
in settlement of any such loss, claim,
damage, liability or expense if settlement is
effected without the consent of the relevant
Selling Holder of Registrable Securities,
which consent shall not be unreasonably
withheld, and (y) in no event shall the
amount of any indemnity under this Section
7.2 exceed the gross proceeds from the
applicable offering received by such Selling
Holder.
7.3. Promptly after receipt by
an indemnified party under this Section 7 of
notice of the commencement of any action,
suit, proceeding, investigation or threat
thereof made in writing for which such
indemnified party may make a claim under this
Section 7, such indemnified party shall
deliver to the indemnifying party a written
notice of the commencement thereof and the
indemnifying party shall have the right to
participate in, and, to the extent the
indemnifying party so desires, jointly with
any other indemnifying party similarly
noticed, to assume the defense thereof with
counsel reasonably satisfactory to each of
the parties; provided, however, that an
indemnified party shall have the right to
retain its own counsel, with the fees and
disbursements and expenses to be paid by the
indemnifying party, if representation of such
indemnified party by the counsel retained by
the indemnifying party would be inappropriate
due to actual or potential differing
interests between such indemnified party and
any other party represented by such counsel
in such proceeding. The failure to deliver
written notice to the indemnifying party
within a reasonable time following the
commencement of any such action, if
prejudicial to its ability to defend such
action, shall relieve such indemnifying party
of any liability to the indemnified party
under this Section 7 but shall not relieve
the indemnifying party of any liability that
it may have to any indemnified party
otherwise than pursuant to this Section 7.
Any fees and expenses incurred by the
indemnified party (including any fees and
expenses incurred in connection with
investigating or preparing to defend such
action or proceeding) shall be paid to the
indemnified party, as incurred, within thirty
(30) days of written notice thereof to the
indemnifying party (regardless of whether it
is ultimately determined that an indemnified
party is not entitled to indemnification
hereunder). Any such indemnified party shall
have the right to employ separate counsel in
any such action, claim or proceeding and to
participate in the defense thereof, but the
fees and expenses of such counsel shall be
the expenses of such indemnified party unless
(i) the indemnifying party has agreed to pay
such fees and expenses or (ii) the
indemnifying party shall have failed to
promptly assume the defense of such action,
claim or proceeding or (iii) the named
parties to any such action, claim or
proceeding (including any impleaded parties)
include both such indemnified party and the
indemnifying party, and such indemnified
party shall have been advised by counsel that
there may be one or more legal defenses
available to it which are different from or
in addition to those available to the
indemnifying party and that the assertion of
such defenses would create a conflict of
interest such that counsel employed by the
indemnifying party could not faithfully
represent the indemnified party (in which
case, if such indemnified party notifies the
indemnifying party in writing that it elects
to employ separate counsel at the expense of
the indemnifying party, the indemnifying
party shall not have the right to assume the
defense of such action, claim or proceeding
on behalf of such indemnified party), it
being understood, however, that the
indemnifying party shall not, in connection
with any one such action, claim or proceeding
or separate but substantially similar or
related actions, claims or proceedings in the
same jurisdiction arising out of the same
general allegations or circumstances, be
liable for the reasonable fees and expenses
of more than one separate firm of attorneys
(together with appropriate local counsel) at
any time for all such indemnified parties.
No indemnifying party shall be liable to an
indemnified party for any settlement of any
action, proceeding or claim without the
written consent of the indemnifying party,
which consent shall not be unreasonably
withheld.
7.4. If the
indemnification required by this Section 7
from the indemnifying party is unavailable to
an indemnified party hereunder in respect
of any losses, claims, damages, liabilities
or expenses referred to in this Section 7:
(i) The indemnifying
party, in lieu of indemnifying such
indemnified party, shall contribute to the
amount paid or payable by such indemnified
party as a result of such losses, claims,
damages, liabilities or expenses in such
proportion as is appropriate to reflect the
relative fault of the indemnifying party and
indemnified parties in connection with the
actions which resulted in such losses,
claims, damages, liabilities or expenses, as
well as any other relevant equitable
considerations. The relative fault of such
indemnifying party and indemnified parties
shall be determined by reference to, among
other things, whether any Violation has been
committed by, or relates to information
supplied by, such indemnifying party or
indemnified parties, and the parties,
relative intent, knowledge, access to
information and opportunity to correct or
prevent such Violation. The amount paid or
payable by a party as a result of the losses,
claims, damages, liabilities and expenses
referred to above shall be deemed to include,
subject to the limitations set forth in
Section 7.1 and Section 7.2, any legal or
other fees or expenses reasonably incurred by
such party in connection with any
investigation or proceeding.
(ii) The parties hereto agree
that it would not be just and equitable if
contribution pursuant to this Section 7.4
were determined by pro rata allocation or by
any other method of allocation which does not
take into account the equitable
considerations referred to in Section 7.4(i).
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 misrepre-
sentation.
7.5. If indemnification
is available under this Section 7, the
indemnifying parties shall indemnify each
indemnified party to the full extent provided
in this Section 7 without regard to the
relative fault of such indemnifying party or
indemnified party or any other equitable
consideration referred to in Section 7.4.
7.6. The obligations of
the Company and the Selling Holders of
Registrable Securities under this Section 7
shall survive the completion of any offering
of Registrable Securities pursuant to a
registration statement under this Agreement,
and otherwise.
Section 8. Transfer of
Registration Rights. Rights with respect to
Registrable Securities may be transferred by
the Holder to any Person in connection with
the Transfer of Registrable Securities to
such Person (a "Transferee"), in all cases,
if (x) any such Transferee that is not a
party to this Agreement shall have executed
and delivered to the Secretary of the Company
a properly completed agreement substantially
in the form of Exhibit A, and (y) the
Transferor shall have delivered to the
Secretary of the Company, no later than 15
days following the date of the Transfer,
written notification of such Transfer setting
forth the name of the Transferor, name and
address of the Transferee, and the number of
Registrable Securities which shall have been
so Transferred.
Section 9. Holdback. Each
Holder entitled pursuant to this Agreement to
have Registrable Securities included in a
registration statement prepared pursuant to
this Agreement, if so requested by the
Underwriters' Representative or Agent in
connection with an offering of any
Registrable Securities, shall not effect any
public sale or distribution of shares of
Common Stock or Preferred Stock or any
securities convertible into or exchangeable
or exercisable for shares of Common Stock or
Preferred Stock, including a sale pursuant to
Rule 144 under the Securities Act (except as
part of such underwritten or agented
registration), during the 5-day period prior
to, and during the 90-day period beginning
on, the date such registration statement is
declared effective under the Securities Act
by the Commission, provided that such Holder
is timely notified of such effective date in
writing by the Company or such Underwriters'
Representative or Agent. In order to enforce
the foregoing covenant, the Company shall be
entitled to impose stop-transfer instructions
with respect to the Registrable Securities of
each Holder until the end of such period.
Section 10. Covenants of the
Company. The Company hereby agrees and
covenants as follows:
10.1. The Company shall
file as and when applicable, on a timely
basis, all reports required to be filed by it
under the Exchange Act. If the Company is
not required to file reports pursuant to the
Exchange Act, upon the request of any Holder
of Registrable Securities, the Company shall
make publicly available the information
specified in subparagraph (c)(2) of Rule 144
of the Securities Act, and take such further
action as may be reasonably required from
time to time and as may be within the
reasonable control of the Company, to enable
the Holders to Transfer Registrable
Securities without registration under the
Securities Act within the limitation of the
exemptions provided by Rule 144 under the
Securities Act or any similar rule or
regulation hereafter adopted by the
Commission.
10.2. The Company shall
not, and shall not permit its majority owned
subsidiaries to, effect any public sale or
distribution of any shares of Common Stock or
Preferred Stock or any securities convertible
into or exchangeable or exercisable for
shares of Common Stock or Preferred Stock,
during the five business days prior to, and
during the 90-day period beginning on, the
commencement of a public distribution of the
Registrable Securities pursuant to any
registration statement prepared pursuant to
Section 2 of this Agreement.
10.3. The Company shall
not, directly or indirectly, (x) enter into
any merger, consolidation or reorganization
in which the Company shall not be the
surviving corporation or (y) Transfer or
agree to Transfer all or substantially all
the Company's assets, unless prior to such
merger, consolidation, reorganization or
asset Transfer, the surviving corporation or
the Transferee, respectively, shall have
agreed in writing to assume the obligations
of the Company under this Agreement, and for
that purpose references hereunder to
"Registrable Securities" shall be deemed to
include the securities which the Holders of
Registrable Securities would be entitled to
receive in exchange for Registrable
Securities pursuant to any such merger,
consolidation or reorganization.
10.4. The Company shall
not grant to any Person (other than a Holder
of Registrable Securities) any registration
rights with respect to securities of the
Company, or enter into any agreement, that
would entitle the holder thereof to have
securities owned by it included in a Demand
Registration unless such registration rights
provide that in the event that the
Underwriter of any such demand registration
determines that marketing factors require a
limitation of the number of Registrable
Securities to be underwritten, the
Underwriter may limit the number of
Registrable Securities to be included in the
demand registration and underwritten public
offering such that all of the Registrable
Securities to be sold by any such Person
shall be excluded and withdrawn from such
registration prior to the exclusion and
withdrawal of any Registrable Securities to
be sold by any Selling Holder, it being
understood, however, that, in the event of a
Demand Registration hereunder, if III
Finance, Ltd. and/or The High Risk
Opportunities Hub Fund Ltd. (collectively,
"III") seek to include therein securities of
the Company subject to that certain
Registration Rights Agreement dated as of
April 30, 1997 by and between the Company and
III, any reduction of Registrable Securities
thereunder and hereunder included in such
registration statement based on a
determination of the underwriter will, as
between III and the Holders, be borne pro
rata by them.
Section 11. Amendment,
Modification and Waivers; Further Assurances.
(i) This Agreement may
be amended with the consent of the Company
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 of Holders owning Registrable
Securities possessing a majority in number of
the Registrable Securities then outstanding
to such amendment, action or omission to act.
(ii) No waiver of any
terms or conditions of this Agreement shall
operate as a waiver of any other breach of
such terms and conditions or any other term
or condition, nor shall any failure to
enforce any provision hereof operate as a
waiver of such provision or of any other
provision hereof. No written waiver
hereunder, unless it by its own terms
explicitly provides to the contrary, shall be
construed to effect a continuing waiver of
the provisions being waived and no such
waiver in any instance shall constitute a
waiver in any other instance or for any other
purpose or impair the right of the party
against whom such waiver is claimed in all
other instances or for all other purposes to
require full compliance with such provision.
(iii) Each of the parties
hereto shall execute all such further
instruments and documents and take all such
further action as any other party hereto may
reasonably require in order to effectuate the
terms and purposes of this Agreement.
Section 12. Assignment; Benefit.
This Agreement and all of the provisions
hereof shall be binding upon and shall inure
to the benefit of the parties hereto and
their respective heirs, assigns, executors,
administrators or successors; provided,
however, that except as specifically provided
herein with respect to certain matters,
neither this Agreement nor any of the rights,
interests or obligations hereunder shall be
assigned or delegated by the Company without
the prior written consent of Holders owning
Registrable Securities possessing a majority
in number of the Registrable Securities
outstanding on the date as of which such
delegation or assignment is to become
effective. A Holder may Transfer its rights
hereunder to a successor in interest to the
Registrable Securities owned by such assignor
only as permitted by Section 8.
Section 13. Miscellaneous.
13.1. Governing Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT GIVING REGARD TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
13.2. Notices. All
notices and requests given pursuant to this
Agreement shall be in writing and shall be
made by hand-delivery, first-class mail
(registered or certified, return receipt
requested), confirmed facsimile or overnight
air courier guaranteeing next business day
delivery to the relevant address set forth
below or in the relevant agreement in the
form of Exhibit A whereby such party became
bound by the provisions of this Agreement.
If to the Company:
The Aegis Consumer Funding Group,
Inc.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxx
If to the Holder:
Greenwich Capital Financial
Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Except as otherwise provided in this
Agreement, the date of each such notice and
request shall be deemed to be, and the date
on which each such notice and request shall
be deemed given shall be: at the time
delivered, if personally delivered or mailed;
when receipt is acknowledged, if sent by
facsimile; and the next business day after
timely delivery to the courier, if sent by
overnight air courier guaranteeing next
business day delivery.
13.3. Entire Agreement;
Integration. This Agreement supersedes all
prior agreements between or among any of the
parties hereto with respect to the subject
matter contained herein and therein, and such
Agreements embodies the entire understanding
among the parties relating to such subject
matter.
13.4. Injunctive Relief.
Each of the parties hereto acknowledges that
in the event of a breach by any of them of
any material provision of this Agreement, the
aggrieved party may be without an adequate
remedy at law. Each of the parties therefore
agrees that in the event of such a breach
hereof the aggrieved party may elect to
institute and prosecute proceedings in any
court of competent jurisdiction to enforce
specific performance or to enjoin the
continuing breach hereof. By seeking or
obtaining any such relief, the aggrieved
party shall not be precluded from seeking or
obtaining any other relief to which it may be
entitled.
13.5. Section Headings.
Section headings are for convenience of
reference only and shall not affect the
meaning of any provision of this Agreement.
13.6. Counterparts. This
Agreement may be executed in any number of
counterparts, each of which shall be an
original, and all of which shall together
constitute one and the same instrument. All
signatures need not be on the same
counterpart.
13.7. Severability. If
any provision of this Agreement shall be
invalid or unenforceable, such invalidity or
unenforceability shall not affect the
validity and enforceability of the remaining
provisions of this Agreement, unless the
result thereof would be unreasonable, in
which case the parties hereto shall negotiate
in good faith as to appropriate amendments
hereto.
13.8. Filing. A copy of
this Agreement and of all amendments thereto
shall be filed at the principal executive
office of the Company with the corporate
recorder of the Company.
13.9. Termination. This
Agreement may be terminated at any time by
a written instrument signed by the parties
hereto. Unless sooner terminated in
accordance with the preceding sentence, this
Agreement (other than Section 7 hereof) shall
terminate in its entirety on such date as
there shall be no Registrable Securities
outstanding, provided that any shares of
Common Stock or Preferred Stock previously
subject to this Agreement shall not be
Registrable Securities following the sale of
any such shares in an offering registered
pursuant to this Agreement.
13.10. Attorney's Fees. In
any action or proceeding brought to enforce
any provision of this Agreement, or where any
provision hereof is validly asserted as a
defense, the
successful party shall be entitled to recover
reasonable attorneys' fees (including any
fees incurred in any appeal) in addition to
its costs and expenses and any other
available remedy.
13.11. No Third Party
Beneficiaries. Nothing herein expressed or
implied is intended to confer upon any
person, other than the parties hereto or
their respective permitted assigns,
successors, heirs and legal representatives,
any rights, remedies, obligations or
liabilities under or by reason of this
Agreement.
IN WITNESS WHEREOF, this Agreement
has been duly executed by the parties hereto
as of the date first written above.
THE AEGIS
CONSUMER
FUNDING GROUP,
INC.
By:
Name:
Xxxxxxx Xxxxx
Title:
Chief Operating Officer
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC.
By:
Name:
Title:
SCHEDULE A
to Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE REGISTRATION RIGHTS AGREEMENT
The undersigned, being the
transferee of [_____ shares of the common
stock, $.01 par value per share] [_____
shares of the preferred stock, $.01 par value
per share; $1,000 stated value per share] [or
describe other capital stock received in
exchange for such common stock] (the
"Registrable Securities"), of The Aegis
Consumer Funding Group, Inc., a Delaware
corporation (the "Company"), as a condition
to the receipt of such Registrable
Securities, acknowledges that matters
pertaining to the registration of such
Registrable Securities are governed by the
Registration Rights Agreement dated as of
November __, 1997 initially between the
Company and the Holder referred to therein
(the "Agreement"), and the undersigned hereby
(1) acknowledges receipt of a copy of the
Agreement, and (2) agrees to be bound as a
Holder by the terms of the Agreement, as the
same has been or may be amended from time to
time.
Agreed to this ____ day of
______________, ____.
____________________________
____________________________*
____________________________*
*Include address for notices.
