Exhibit 10.7
Execution Copy
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of July 30, 2003 by
and among FirstPlus Financial Group, Inc., a Nevada corporation ("FirstPlus"),
Capital Lending Strategies, LLC, a Texas limited liability company ("Capital
Lending") and Class Representative Xxxxxx X. Xxxxxxx, III, on behalf of all
Class Members (the "Representative") and Xxxxxxx Xxxxx Xxxxxxx Xxxxx & Xxxxxx
LLP and Sirota and Sirota LLP, each solely in its capacity as Plaintiffs'
Co-Lead Counsel and supervisor of the administration of the Settlement.
RECITALS
WHEREAS, FirstPlus is a member of Capital Lending.
WHEREAS, Capital Lending is a stockholder of FirstPlus.
WHEREAS, FirstPlus is a defendant in the court action entitled In re:
FirstPlus Financial Group, Inc. Securities Litigation, No. 3:98-CV-2551-M (the
"Action").
WHEREAS, the parties to the Action have entered into that certain
Stipulation and Agreement of Settlement dated as of July 30, 2003 (the
"Stipulation").
WHEREAS, pursuant to the Stipulation, FirstPlus will deliver the
Certificate pursuant to the instructions of Xxxxxxx Xxxxx Xxxxxxx Xxxxx & Xxxxxx
LLP and Sirota and Sirota LLP (together in their capacity as escrow agent for
the Certificate, the "Escrow Agent") as part of the Settlement Fund to be held
in escrow subject to the terms and conditions set forth in the Escrow Agreement
and the Stipulation, by and among FirstPlus, the Representative, the Escrow
Agent and Plaintiffs' Co-Lead Counsel, dated as of the date hereof (the "Escrow
Agreement").
WHEREAS, pursuant to the Stipulation, the Holders (as defined below) are
entitled to a distribution of registered securities under certain circumstances.
WHEREAS, pursuant to the Stipulation and the Proof of Claim, the Holders
have made certain agreements with respect to FirstPlus, Capital Lending, the
Escrow Agent and this Agreement.
WHEREAS, Capital Lending, the Representative and Plaintiffs' Co-Lead
Counsel have entered into that certain Assignment Agreement, dated as of the
date hereof (the "Assignment Agreement").
WHEREAS, the members and the sole manager of Capital Lending have approved
certain assignments of ownership interests of Capital Lending to the
Representative on behalf of the Authorized Claimants and the grant of
registration rights in consideration of the settlement of the Action, in each
case subject to the terms and conditions of the Escrow Agreement and the
Stipulation.
In consideration of the premises and mutual covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
AGREEMENT
1. Definitions. For purposes of this Agreement, the following terms will
have meanings set forth in this Section, unless the context clearly requires
otherwise. Any capitalized terms not defined in this Agreement will have
meanings set forth in the Stipulation.
(a) "Agreement" means this Registration Rights Agreement, as may be
amended, modified or supplemented from time to time.
(b) "Commission" means the United States Securities and Exchange
Commission.
(c) "Company" means Capital Lending and any surviving entity or third
party acquiror, as the case may be, with obligations to register Registrable
Securities (as defined in this Agreement) under this Agreement.
(d) "Escrow Common Units" means the Common Units held by the Escrow
Agent pursuant to the Stipulation and Escrow Agreement.
(e) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(f) "Holder" means an Authorized Claimant entitled to receive
Registrable Securities pursuant to the Stipulation and Plan of Allocation or
other recipient of Registrable Securities approved by the Court pursuant to the
Stipulation.
(g) "Merger Event" means the consolidation or merger of Capital
Lending with or into any other entity or entities in which Capital Lending is
not the surviving entity, or the acquisition of 51% of the equity interests of
Capital Lending by a third party acquiror, in either case, pursuant to which the
owners of equity interests in Capital Lending are to receive consideration
consisting of securities of such surviving entity or third party acquiror, the
distribution of which is required to be registered under the Securities Act, and
such surviving entity or third party acquiror is registered, or is required to
register, under the Exchange Act.
(h) "Register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(i) "Registrable Securities" means:
(i) any securities issued or issuable to the Holders in connection
with a Merger Event; or
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(ii) equity securities of the Company for which the Escrow Common
Units are convertible into or exchangeable for pursuant to any conversion,
reorganization or recapitalization of the Company.
(j) "Regulations" means those certain Amended and Restated Regulations
of CL Capital Lending, LLC, dated as of February 11, 2003, amended by that
certain First Amendment to Amended and Restated Regulations of CL Capital
lending, LLC, dated as of April 29, 2003, as may be amended, modified or
supplemented from time to time.
(k) "Securities Act" means the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
2. Required Registration.
(a) In the event of a Merger Event, within 60 days of the closing of
such Merger Event, the Company shall file, or cause to be filed, a registration
statement under the Securities Act to register the distribution of Registrable
Securities described in Section 1(h)(i) above to the Holders pursuant to the
Stipulation and Plan of Allocation.
(b) (i) If the Company proposes to file on its behalf a registration
statement under the Securities Act on any form (other than a registration
statement on Form S-4 or S-8 or any successor form for securities to be offered
in a transaction of the type referred to in Rule 145 under the Securities Act or
to employees of the Company pursuant to any employee benefit plan, respectively)
for the registration of the Common Units or such other class of common equity
securities of the Company then outstanding (a "Piggy-Back Registration"), it
will give written notice to FirstPlus and Plaintiff's Co-Lead Counsel at least
thirty-five (35) days before the proposed initial filing with the Commission of
such piggy-back registration statement (a "Piggy-Back Registration Statement").
The notice shall offer to include in such filing the aggregate number of shares
of Registrable Securities as Plaintiffs' Co-Lead Counsel may request, determined
in accordance with the Stipulation and Plan of Allocation.
(ii) Plaintiffs' Co-Lead Counsel shall advise the Company in
writing within thirty (30) days after the date of receipt of such offer from the
Company, setting forth the amount of such Registrable Securities for which
registration is requested and any other information requested by the Company
pursuant to Section 5(a)(iii) below. The Company shall thereupon include in such
filing the number or amount of Registrable Securities for which registration is
so requested, subject to Section 2(c) below.
(iii) (A) If the Piggy-Back Registration relates to an
underwritten public offering and the managing underwriter of such proposed
public offering advises that, in its opinion, the amount of Registrable
Securities requested to be included in the Piggy-Back Registration in addition
to the securities being registered by the Company would be greater than the
total number of securities which can be sold therein without having a material
adverse effect on the distribution of such securities or otherwise having a
material adverse effect on the marketability thereof (the "Maximum Number of
Securities"), then the Company shall include in such Piggy-Back Registration
first, the securities the Company proposes to register and second, (1) the
Registrable Securities to be included in such Piggy-Back Registration (such
amount to be
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allocated by Plaintiffs' Co-Lead Counsel among the Holders' proportional share
of the Registrable Securities as determined in accordance with the Stipulation
and Plan of Allocation on a pro rata basis) together with (2) the securities of
other holders of securities of the Company (the "Other Holders") proposed to be
included in such registration, pro rata among the Holders and Other Holders on
the basis of the number of shares of securities for which each of the Holders
and Other Holders have requested registration, in an amount which together with
the securities the Company proposes to register, shall not exceed the Maximum
Number of Securities.
(B) If the number of Registrable Securities to be included
in a Piggy-Back Registration is reduced in accordance with Section 2(b)(iii)(A)
above, the Company shall file, or cause to be filed, a registration statement
under the Securities Act to register the remaining Registrable Securities not
included in such Piggy-Back Registration within 60 days after the 180-day
anniversary of the effective date of the Piggy-Back Registration, or such other
period of duration specified by the managing underwriter and set forth in any
"lock-up" or "market stand-off" agreements entered into by the holders of the
common equity securities of the Company in favor of the underwriters in
connection with the offering described in Section 2(b)(iii)(A) above.
(c) As soon as practicable after receipt of notice from the Commission
informing the Company of the effectiveness of the registration statement
covering the distribution of the Registrable Securities to the Holders, the
Company shall provide to FirstPlus and Plaintiff's Co-Lead Counsel written
notice of such effectiveness.
(d) Notwithstanding the foregoing, the obligations of the Company
under this Section will terminate following upon the earlier of (i)(A) the
consummation of the first registration conducted pursuant to Section 2(b)(ii)
above, or, (B) if the number of Registrable Securities to be included in a
Piggy-Back Registration is reduced in accordance with Section 2(b)(iii)(A)
above, the consummation of the first registration conducted pursuant to Section
2(b)(iii)(B) above, or (ii) the delivery of the Certificate by the Escrow Agent
to FirstPlus pursuant to Section 3 of the Escrow Agreement.
(e) Notwithstanding the foregoing, the Company will only be obligated
under this Section 2 to register the Registrable Securities of any Holder if
such Holder executes and delivers all questionnaires, indemnities, agreements,
instruments or documents reasonably required by the Company, the Stipulation or
the Proof of Claim to be executed in connection with a registration of
Registrable Securities under this Agreement.
(f) (i) The Company shall not be liable for any expenses, fees, costs
with respect to the Registrable Securities, including, without limitation,
discounts or commissions to any underwriter, fees or disbursements of counsel
for any underwriter, fees or disbursements of counsel for the Representative and
fees or disbursements of counsel for any Holder.
(ii) All expenses to be incurred by the Company in complying with
the provisions of this Agreement shall be paid by FirstPlus in advance of the
Company incurring such expenses upon the written request by the Company to
FirstPlus for such expenses, which may include, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, expenses of any special audits incident to or required
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by any such registration and expenses of complying with the securities or blue
sky laws of any jurisdiction. FirstPlus agrees to pay these sums upon demand.
3. Indemnification. Each of the Representative, each Class Member and
each of Plaintiffs' Co-Lead Counsel, separately and not jointly, (each, an
"Indemnifying Party") agrees to indemnify, to the fullest extent permitted by
law, and hold harmless the Company, its managers, members, partners, officers,
directors, employees and agents, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, together with the managers, members, partners, officers,
directors, employees and agents of such controlling person (individually, a
"Controlling Person" and collectively, the "Controlling Persons"), from and
against any loss, claim, damage, liability, reasonable attorneys' fee, cost or
expense and costs and expenses (including, without limitation, costs of
preparation and attorneys' fees and disbursements) of investigating and
defending any such claim (collectively, the "Damages"), joint or several, and
any action in respect thereof to which the Company, its managers, members,
partners, officers, directors, employees or agents, or any such Controlling
Person may become subject under the Securities Act or otherwise, insofar as such
Damages (or proceedings in respect thereof) arise out of, or are based upon,
with respect to information related to such Indemnifying Party, furnished in
writing by the Indemnifying Party or expressly on such Indemnifying Party's
behalf expressly for use in any registration statement or prospectus relating to
the Registrable Securities, and shall reimburse the Company, its managers,
members, partners, officers, directors, employees and agents, and each such
Controlling Person for any legal and other expenses reasonably incurred by the
Company, its managers, members, partners, officers, directors, employees and
agents, or any such Controlling Person in investigating or defending or
preparing to defend against any such Damages or proceedings. The Indemnifying
Parties also agree to indemnify and hold harmless any underwriters of the
Registrable Securities, and their respective officers and directors, on
substantially the same basis as that of the indemnification of the Company,
provided in this Section 3.
4. Transferability. This Agreement and the rights, duties and obligations
hereunder may not be assigned or delegated by the Representative or any Holder,
other than by operation of law. This Agreement and the provisions hereof shall
be binding upon and shall inure to the benefit of each of the parties and their
respective successors and permitted assigns.
5. Miscellaneous.
(a) Additional Agreements of the Company.
(i) The Company agrees to perform such acts as are reasonably
necessary to effect the notation of the transfer of the Registrable Securities
on its stock transfer ledger with respect to the distribution of the Registrable
Securities covered by Sections 2(a) through (c) above; provided, however, that
neither this Agreement, the organizational documents of the Company nor any
other agreement to which either the Representative or Plaintiffs Co-Lead Counsel
(in any capacity) is a party shall create any obligation or liability of the
Company with respect to facilitating any transfer, sale or other transaction
involving the Registrable Securities, acting as an agent of the Representative,
the Authorized Claimants or Plaintiffs' Co-Lead Counsel with respect to the
transfer, sale or other transaction involving the Registrable
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Securities or in any way acting or being deemed to act as an underwriter with
respect to the Registrable Securities.
(ii) Capital Lending agrees not to amend the Regulations to (A)
cause the terms and provisions of the Regulations with respect to the Assigned
Distributions (as defined in the Assignment Agreement) to be less favorable to
the Assignee (as defined in the Assignment Agreement) than the terms and
provisions of the Regulations with respect to the Assigned Distributions in
effect on the date of this Agreement, or (B) amend, modify or terminate this
Agreement, except as provided in Section 5(b) below.
(iii) Each of Plaintiffs' Co-Lead Counsel agrees to perform such
acts and to provide such information to the Company as is necessary for the
Company to comply with the terms and provisions of this Agreement and any
applicable federal, state and local law, statute, rule, ordinance or regulation.
(b) Waivers and Amendments. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement among the parties with regard to the subjects hereof and thereof. No
amendment, modification or termination of this Agreement shall be binding upon
any other party unless executed in writing by each of the Company, the
Representative, and Plaintiffs' Co-Lead Counsel.
(c) Severability. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement,
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
(d) Choice of Law. The internal substantive laws, and not the laws of
conflicts, of the State of Texas shall govern the enforceability and validity of
this Agreement, the construction of its terms and the interpretation of the
rights and duties of the parties. The Court in the Action shall have the
continuing jurisdiction over the parties hereto for purposes of, and with
respect to Capital Lending solely for the purposes of, construing and enforcing
this Agreement; provided, however, that the parties hereby acknowledge that
Capital Lending is not a party to the Action or the Stipulation and agree and
acknowledge that the Regulations (and, with respect to Capital Lending, the
Assigned Distributions) are not part of or otherwise incorporated into the
Action, the Stipulation or this Agreement and shall not constitute a document
"delivered pursuant hereto" under Section 5(b) above.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, with the same
effect as if all parties had signed the same document. All such counterparts
shall be deemed an original, shall be construed together and shall constitute
one and the same instrument.
(f) No Oral Agreements. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN AND AMONG THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE
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PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(g) WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
ANY OF THIS AGREEMENT, THE ESCROW AGREEMENT, THE ASSIGNMENT AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE ACTIONS OF THE PARTIES IN THE
NEGOTIATION, ADMINISTRATION OR ENFORCEMENT THEREOF.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Registration Rights Agreement as of the day and year first above written.
FIRSTPLUS FINANCIAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------------
Title: CEO
----------------------------------------
Address for Notices:
0000 X. X'Xxxxxx Xxxx.
0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: 214.231.7698
CAPITAL LENDING STRATEGIES, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Managing Member
----------------------------------------
Address for Notices:
0000 X. X'Xxxxxx Xxxx.
0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Manager
Telecopy No.: 214.231.7698
/s/ Xxxxxx X. Xxxxxxx, III
----------------------------------------------
CLASS REPRESENTATIVE XXXXXX X. XXXXXXX, III
Address for Notices:
c/o Xxxxxxx Xxxxx Xxxxxxx Xxxxx &
Lerach LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx, Esq.
Telecopy No.: 619.231.7423
XXXXXXX XXXXX
XXXXXXX XXXXX &
LERACH LLP, as
Plaintiffs' Co-Lead
Counsel and
Supervisor of the
Administration of
the Settlement
By: /s/ Joy Xxx Xxxx
-------------------------------------------
Name: Joy Xxx Xxxx
-----------------------------------------
Title: A Member of the Firm
----------------------------------------
Address for Notices:
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx, Esq.
Telecopy No.: 619.231.7423
SIROTA & SIROTA LLP,
as Plaintiffs' Co-Lead Counsel and Supervisor
of the Administration of the Settlement
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------------------
Title: Partner
----------------------------------------
Address for Notices:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Telecopy No.: 212.425.9093
