REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated December
15, 1995, by and between THE CIT GROUP HOLDINGS, INC., a Delaware corporation
(the "Company"), and CBC HOLDING (DELAWARE) INC., a Delaware corporation
("CBC").
WHEREAS, CBC has agreed not to sell, transfer or otherwise
dispose of the shares of Common Stock of the Company currently held by it for a
period of five years from the date hereof if the Company provides it with
registration rights with respect to such shares as set forth herein; and
WHEREAS, the Company and its stockholders believe that it is
in the best interest of the Company that CBC retain its ownership interest in
the Company and, accordingly, that the Company provide CBC with registration
rights for its shares upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. For the purposes of this Agreement, in addition to the
terms defined elsewhere in this Agreement, the following terms shall have the
meanings set forth below:
"Common Stock" means the Common Stock of the Company.
"Demand Period" means the period commencing on December 15,
2000 and ending on December 15, 2005.
"Demand Registration" means a demand registration requested
by CBC pursuant to Section 3 hereof.
"Demand Registration Statement" means any registration
statement of the Company which provides for the sale of Registrable Securities
for which a demand for registration has been made pursuant to Section 3(a),
including any Prospectus filed with respect thereto, and any amendments and
supplements to any such registration statement, including post-effective
amendments, and all exhibits and all material incorporated by reference in any
such registration statement.
"DKB" means The Dai-Ichi Kangyo Bank, Limited, a Japanese
banking corporation and a stockholder of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"NASD" means the National Association of Securities Dealers,
Inc.
"Person" means any individual, firm, corporation,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company, government (or an agency or
political subdivision thereof) or other entity of any kind, and shall include
any successor (by merger or otherwise) of such entity.
"Piggy-Back Registration Statement" means any registration
statement of the Company which provides for the sale of Registrable Securities
pursuant to a request for registration made pursuant to Section 4, including any
Prospectus filed with respect thereto, and any amendments and supplements to any
such registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in any such registration
statement.
"Prospectus" means the prospectus included in the
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 the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Registrable Securities" means all shares of Common Stock
now owned or hereafter acquired by CBC and any other securities of the Company
issued in exchange for, upon a reclassification of, or in a distribution with
respect to, such Common Stock. Securities will cease to be Registrable
Securities in accordance with Section 2 hereof.
"Registration Expenses" shall have the meaning assigned
thereto in Section 9.
"Registration Statement" means any Demand Registration
Statement or any Piggy-Back Registration Statement.
"SEC" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"Securities Act" means the Securities Act of 1933, as
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amended from time to time.
"underwritten registration or underwritten offering" means
an underwritten offering in which securities of the Company are sold to an
underwriter for reoffering to the public.
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2. Securities Subject to this Agreement. The securities
entitled to the benefits of this Agreement are the Registrable Securities. For
the purposes of this Agreement, Registrable Securities will cease to be
Registrable Securities when and to the extent that (i) a Registration Statement
covering such Registrable Securities has been declared effective under the
Securities Act by the SEC and such Registrable Securities have been disposed of
pursuant to such effective Registration Statement, (ii) such Registrable
Securities are distributed to the public pursuant to Rule 144 (or any successor
provision then in force) under the Securities Act, (iii) such Registrable
Securities shall have been sold, transferred or otherwise disposed of by CBC, or
(iv) the Demand Period has expired.
3. Demand Registration Rights.
(a) Upon the written request of CBC at any time during the
Demand Period that the Company effect the registration with the SEC of all, but
not less than all, of the Registrable Securities under the Securities Act, the
Company, subject to Section 3(d) below, will use its reasonable best efforts to
effect the registration under the Securities Act, as promptly as reasonably
practicable following such request, of the Registrable Securities for
disposition as specified in such request; provided, however, that the Company
will not be required to effect more than one registration at the request of CBC
pursuant to this Section 3(a), and provided, further, that the Company shall not
be required to file a Demand Registration Statement (i) within the period
beginning on the effective date of a registration statement filed by the Company
relating to common stock or securities convertible into or exchangeable for
common stock (other than in connection with an exchange offer or any offering of
securities solely to existing security holders or employees of the Company) and
ending on the later of (1) 90 days thereafter and (2) the expiration of any
lock-up period (not exceeding 180 days) required by the underwriters, if any, in
connection therewith or (ii) as a "shelf" registration statement under Rule 415
under the Securities Act (or any successor rule that may be adopted by the SEC);
and provided, further, that the Company shall be deemed to have satisfied its
obligations with respect to a demand for registration under this Section 3(a) to
the extent that the Company has amended (to the extent permitted by applicable
law) any registration statement previously filed by the Company under the
Securities Act so that such registration statement (as amended) shall permit the
disposition (in accordance with the intended methods of disposition specified as
aforesaid) of the Registrable Securities for which a demand for registration has
been made under this Section 3(a). The offering of Registrable Securities
pursuant to a Demand Registration shall be in the form of a firm commitment
underwritten offering.
(b) A registration requested pursuant to Section 3(a) shall
be deemed to be effected if the Registration Statement in respect thereof has
been declared effective by the SEC or becomes effective in accordance with the
Securities Act and the rules and regulations thereunder and the Registrable
Securities registered thereunder have been disposed of; provided, that so long
as the Company has complied in all material respects with its obligations
hereunder, a registration which does not become effective by reason of CBC's
refusal to proceed or its revocation of a registration request other than
pursuant to the
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following sentence or any other act or omission by CBC or a registration which
becomes effective but does not result in the disposition of the Registrable
Securities registered thereunder other than by reason of the failure of the
Company to fulfill its obligations in connection therewith in any material
respect shall be deemed to have satisfied the Company's obligations under this
Section 3. CBC may at any time prior to the effective date of a Demand
Registration Statement revoke its request for registration by providing a
written notice to the Company revoking such request, provided that CBC
reimburses the Company for all of its reasonable out-of-pocket expenses
(including all Registration Expenses) incurred in the preparation, filing and
processing of such Demand Registration Statement within 20 business days after
delivery of a written request by the Company therefor, and provided further that
CBC may not revoke more than one registration request pursuant to this Section
3(b).
(c) In any registration pursuant to this Section 3, the
Company shall be entitled to include securities to be sold for its own account
or for the account of others, provided, however, that, if the managing
underwriter or underwriters of the proposed offering advise the Company, in
writing, that in its or their opinion marketing factors require a limitation on
the aggregate number of securities to be sold in a registration pursuant to this
Section 3, there shall be included in such registration only the number of
securities which, in the opinion of such underwriter or underwriters, can be
sold without adversely affecting the success of such offering. In such event the
Company shall include in such registration (i) first, the Registrable Securities
and (ii) second, the securities to be sold for the account of the Company and
other stockholders of the Company desiring to participate in such offering, to
be allocated among the Company and such other stockholders on a pro rata basis
based on the number of securities the Company and such other stockholders desire
to sell. In the event any Registrable Securities held by CBC are excluded from
the offering to be made pursuant to the Demand Registration requested by CBC as
a result of the foregoing, then CBC shall have the right to such number of
additional Demand Registrations under this Section 3 with respect to such
Registrable Securities as may be necessary to include in an offering all of the
Registrable Securities it wishes to register but was unable to as a result of
cutbacks by the underwriters pursuant to this paragraph (c).
(d) Notwithstanding the foregoing, in the event that CBC
requests a Demand Registration pursuant to Section 3(a) which would constitute
an initial public offering of Common Stock, concurrently with the delivery to
the Company of its request therefor, or at the option of CBC in the case of a
request for such a Demand Registration to be made within the first 60 days of
the Demand Period, concurrently with the delivery to the Company of a notice of
its intent to request a Demand Registration within the first 60 days of the
Demand Period, which notice may be delivered by CBC to the Company not earlier
than 60 days prior to the commencement of the Demand Period, CBC shall
concurrently deliver a copy of such request (or notice of intent to request) to
DKB, and thereafter the Company or DKB shall have the right to demand a 60-day
negotiation period, during which the Company shall not be required to take any
action with respect to CBC's request for a Demand Registration and CBC shall be
obligated to negotiate in good faith for the private
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sale of the Registrable Shares to DKB or to another purchaser acceptable to DKB
or the Company on terms mutually acceptable to CBC and such purchaser. If no
agreement can be reached during such 60-day negotiation period, than the Company
shall effect a Demand Registration in accordance with the other provisions of
this Section 3 and Section 8.
4. Piggy-Back Registration Rights.
(a) If at any time during the Demand Period the Company
proposes to file a registration statement under the Securities Act with respect
to an offering by the Company of its Common Stock for cash for sale for its own
account pursuant to a firm commitment underwriting (other than pursuant to a
registration statement on Form S-4 or S-8 or any successor forms or filed in
connection with an exchange offer or any offering of securities solely to
existing security holders or employees of the Company), then the Company shall
give written notice of such proposed filing to CBC at least ten business days
before the anticipated filing date specifying the approximate date on which the
Company proposes to file such registration statement and offering CBC the
opportunity to register such number of Registrable Securities as it may request.
The Company shall use its reasonable best efforts to cause the managing
underwriter or underwriters of the proposed underwritten offering to permit CBC,
if it has requested to participate in the registration for such offering, to
include its Registrable Securities in such offering on the same terms and
conditions as the shares of Common Stock to be sold by the Company included
therein.
(b) CBC may include its Registrable Securities in any
Registration Statement relating to an offering pursuant to Section 4(a) to the
extent that the inclusion of such Registrable Securities shall not reduce the
number of shares of Common Stock to be offered and sold by the Company pursuant
thereto. If the lead managing underwriter selected by the Company for an
underwritten offering pursuant to Section 4(a) determines that marketing factors
require a limitation on the number of shares to be offered and sold by
stockholders of the Company in such offering, there shall be included in the
offering only that number of such shares of Common Stock, if any, that such lead
managing underwriter, reasonably and in good faith believes will not jeopardize
the success of the offering of all the securities that the Company desires to
sell for its own account. In such event, and provided the managing underwriter
has also notified the Company in writing, the number of shares of Common Stock
to be offered and sold by stockholders of the Company, including CBC, desiring
to participate in such offering shall be allocated among such stockholders of
the Company on a pro rata basis based on the number of shares such stockholders
desire to sell.
(c) Nothing in this Section 4 shall prevent the Company from
at any time deciding, nor create any liability on the part of the Company to CBC
if the Company for any reason should decide, not to file a registration
statement proposed to be filed under Section 4(a) or to withdraw such
registration statement subsequent to its filing, regardless of any action
whatsoever that CBC may have taken, whether as a result of the issuance by the
Company of any notice hereunder or otherwise.
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(d) CBC may elect to withdraw from participation in a
Piggy-Back Registration Statement by written notice to the Company and the
managing underwriter at any time prior to the filing date of the Registration
Statement.
5. Blackout Period. Notwithstanding any other provision
hereof to the contrary, the Company shall be entitled to (i) postpone the filing
of any Demand Registration Statement otherwise required to be prepared and filed
by the Company pursuant to Section 3(a) or (ii) elect that any Demand
Registration Statement or Piggy Back Registration Statement not be usable, for a
reasonable period of time not to exceed 90 days in the aggregate (a "Blackout
Period"), if the Board of Directors of the Company determines in good faith that
the registration and distribution of Registrable Securities (or the use of such
Registration Statement or related Prospectus) would adversely affect any pending
financing, acquisition, corporate reorganization or any other corporate
development involving the Company or any of its subsidiaries or would require
premature disclosure thereof and promptly gives CBC written notice of such
determination, containing a general statement of the reasons for the
postponement or restriction on use and an approximation of the anticipated
delay. The Company shall give written notice to CBC of the commencement and the
termination of any Blackout Period.
6. Selection of Underwriters. In any offering pursuant to a
Demand Registration Statement, CBC may select a managing underwriter or
underwriters to administer the offering, provided that such underwriter or
underwriters are reasonably acceptable to the Company, it being understood and
agreed that the Company may reject any underwriter so chosen if the Company, in
its sole discretion, believes for sufficient business reasons that such
underwriter is not acceptable (in which event CBC may select another underwriter
reasonably acceptable to the Company in accordance with this sentence). In any
offering pursuant to a Piggy-Back Registration Statement, the Company will
select a managing underwriter or underwriters to administer the offering.
7. Holdback Agreement. Each of the Company and CBC agrees
not to effect any public sale or distribution of any Common Stock being
registered or of any securities convertible into or exchangeable or exercisable
for such Common Stock, including a sale pursuant to Rule 144 under the
Securities Act, during the period beginning on the filing of any registration
statement effected hereby and ending on the later of (i) 90 days after the
effective date of such registration statement or (ii) the expiration of any
lock-up period (not exceeding 180 days) required by the underwriters of such
offering (except, in any case, as part of such registration), if and to the
extent requested by the managing underwriter or underwriters.
8. Registration Procedures. Whenever registration of
Registrable Securities has been requested pursuant to Section 3 or Section 4 of
this Agreement, the Company shall use its reasonable best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof, and in connection with any such
request, the Company shall, as expeditiously as possible:
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(a) prepare and file with the SEC (as promptly as reasonably
practicable, but, in any event, in the case of a Demand Registration
Statement, not later than 60 days after receipt of CBC's demand
therefor or, if applicable, 60 days after the end of the negotiation
period requested pursuant to Section 3(d) above in connection with any
such demand) a Registration Statement with respect to such Registrable
Securities on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be
available for the sale of such Registrable Securities in accordance
with the intended method of distribution thereof, and use its best
efforts to cause such Registration Statement to become effective;
provided, that reasonably prior to filing a Registration Statement or
Prospectus, or any amendments or supplements thereto (other than
reports and proxy and information statements required to be filed by
it under the Exchange Act and the rules and regulations adopted by the
SEC thereunder), the Company will furnish to CBC and its counsel, for
review and comment, copies of all documents proposed to be filed;
(b) prepare and file with the SEC such amendments and
post-effective amendments to such Registration Statement and such
amendments and supplements to the Prospectus used in connection
therewith as may be necessary to maintain the effectiveness of such
registration or as may be required by the rules, regulations or
instructions applicable to the registration form used by the Company or
otherwise necessary to keep any Demand Registration Statement effective
for up to 90 days to the extent required by the Securities Act and the
rules and regulations adopted by the SEC thereunder, to cause such
Prospectus as so supplemented to be filed pursuant to Rule 424 under
the Securities Act, and to otherwise comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Registration Statement during such period in accordance
with the intended methods of disposition set forth in such Registration
Statement;
(c) furnish to CBC such number of copies of any
Registration Statement and of each amendment and post-effective
amendment thereto (in each case including all exhibits thereto and any
documents incorporated therein by reference), any Prospectus or
Prospectus supplement, as applicable, and such other documents as CBC
may reasonably request in order to facilitate the disposition of the
Registrable Securities by CBC (the Company hereby consenting to the use
(subject to the limitations set forth in the last paragraph of this
Section 8) of the Prospectus or any amendment or supplement thereto in
connection with such disposition);
(d) use its reasonable best efforts to register or
qualify the Registrable Securities covered by a Demand Registration
Statement under such other state securities or blue sky laws of such
jurisdictions as CBC or the underwriters shall reasonably request, and
do any and all other acts and things which may be reasonably necessary
or advisable to enable CBC to consummate the disposition in such
jurisdictions of the Registrable Securities owned by it, except that
the Company shall
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not for any such purpose be required (i) to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for
the requirements of this Section 8(d) it would not be obligated to be
so qualified, (ii) to subject itself to taxation in any such
jurisdiction or (iii) to consent to general service of process in any
such jurisdiction;
(e) notify CBC at any time when a Prospectus relating
to the Registrable Securities covered by such Registration Statement is
required to be delivered under the Securities Act within the
appropriate period mentioned in Section 8(b) of the Company's becoming
aware that the Prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and, at the request of CBC, the Company
shall prepare and furnish to CBC a reasonable number of copies of any
amendment or supplement to such Registration Statement or related
Prospectus as may be necessary so that, after delivery to the
purchasers of such Registrable Securities, such Prospectus shall not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(f) notify CBC at any time
(1) when the Prospectus or any Prospectus
supplement relating thereto 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 such Registration Statement or such
Prospectus or for additional information, and
(3) of the issuance by the SEC of any stop
order suspending the effectiveness of such Registration
Statement or the use of any prospectus or the initiation of
any proceedings for that purpose (it being understood that
the Company shall use its reasonable best efforts to cause
such stop order to be withdrawn as soon as practicable);
(g) otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC, and make
available to its securityholders, as soon as reasonably practicable
(but no later than 18 months) after the effective date of the
Registration Statement, an earnings statement which satisfies the
provisions of Section 11(a) of the Securities Act; provided, however,
that the Company shall be
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deemed to have complied with this paragraph if it has complied with
Rule 158 of the Securities Act;
(h) use its reasonable best efforts to cause all such
Registrable Securities to be listed on any securities exchange on which
the Common Stock is then listed or on which the Company proposes to
list the Common Stock, if such Registrable Securities are not already
so listed and if such listing is then permitted under the rules of such
exchange, and to provide a transfer agent and registrar for such
Registrable Securities covered by the Registration Statement no later
than the effective date of such Registration Statement;
(i) enter into such customary agreements (including
underwriting agreements in customary form) and take all other
appropriate and reasonable actions in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection;
(1) obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory
to the managing underwriters and CBC) addressed to the
underwriters and CBC covering the matters customarily
covered in opinions requested in comparable underwritten
offerings and such other matters as may be reasonably
requested by such underwriters or CBC;
(2) obtain "cold comfort" letters and
updates thereof from the Company's independent certified
public accountants addressed to the underwriters and CBC,
such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters by
independent accountants in connection with comparable
underwritten offerings;
(3) if requested, provide the
indemnification in accordance with or in substitution for
the provisions and procedures of Section 10 hereof; and
(4) deliver such documents and certificates
as may be reasonably requested by the managing underwriters
to evidence compliance with any customary conditions
contained in the underwriting or other agreement to be
entered into by the Company;
(j) cooperate with the managing underwriter or
underwriters to facilitate, to the extent reasonable under the
circumstances, the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing the securities to be sold
under such Registration Statement, and enable such securities to be in
such
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denominations and registered in such names as the managing underwriter
or underwriters may request;
(k) cooperate with the managing underwriter or
underwriters and CBC and their respective counsel in the preparation of
any filings required to be made with the NASD;
(l) use its reasonable best efforts to cause the
Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the underwriter or
underwriters to consummate the disposition of such securities; and
(m) cause the executive officers of the Company to be
made available to any underwriter participating in any disposition
pursuant to such Registration Statement to the extent reasonably
requested and customary in connection with an underwritten public
offering of shares of the Company's securities, subject to reasonable
time and expense constraints.
The Company shall be entitled to require CBC to furnish to
the Company such information regarding CBC and pertinent to the disclosure
requirements relating to the registration and the distribution of any
Registrable Securities as the Company may from time to time reasonably request
in writing.
9. Registration Expenses. The Company will pay all expenses
(other than underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of CBC's Registrable Securities pursuant to
a Registration Statement and the fees and expenses of counsel to CBC) incident
to the performance of or compliance with this Agreement, including, without
limitation, (i) all SEC, stock exchange and NASD registration and filing fees,
(ii) all of the fees and expenses of the Company and the underwriters incurred
in complying with securities or blue sky laws (including the reasonable fees,
charges and disbursements of counsel for any underwriters in connection with
blue sky qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses and (iv) the fees, charges and disbursements of
counsel to the Company and of its independent public accountants and any other
accounting and legal fees, charges and expenses incurred by the Company
(collectively, "Registration Expenses"), and CBC shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of its Registrable Securities pursuant to a Registration Statement
and all fees and expenses of counsel to CBC.
10. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees
to indemnify, defend and hold harmless CBC and each Person who controls (within
the meaning of the
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Securities Act and the Exchange Act) CBC, from and against any and all losses,
claims, liabilities and expenses (including the reasonable costs of
investigation) which CBC or such controlling Person may incur under the
Securities Act or otherwise, insofar as such loss, claim, liability or expense
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement, Prospectus or
preliminary Prospectus or any amendment or supplement to any of the foregoing,
or arises out of or is based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such loss, claim, liability
or expense arises out of or is based upon any such untrue statement or alleged
untrue statement of a material fact contained therein in reliance on or in
conformity with any information furnished in writing to the Company by CBC or
such controlling Person or their respective counsel expressly for use in any of
such documents or arises out of or is based upon any omission or alleged
omission to state therein a material fact in connection with such information
required to be stated therein or necessary to make such information not
misleading. The Company shall also indemnify any underwriters of the Registrable
Securities and each Person who controls such underwriters (within the meaning of
the Securities Act and the Exchange Act) to the same extent as provided above
with respect to the indemnification of CBC. Notwithstanding the foregoing
provisions of this Section 10(a), the Company will not be liable to CBC or any
Person who participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls (within the meaning of the
Securities Act and the Exchange Act) CBC or such underwriter, under the
indemnity agreement in this Section 10(a) for any such loss, claim, liability or
expense that arises out of CBC's or such controlling Person's failure to send or
give a copy of the final Prospectus (or the most recent amendment or supplement
thereof) to the Person asserting an untrue statement or alleged untrue statement
or omission or alleged omission at or prior to the written confirmation of the
sale of the Registrable Securities to such Person if such statement or omission
was corrected in such final Prospectus (or such amendment or supplement) and the
Company had previously furnished copies thereof in accordance with this
Agreement.
(b) Indemnification by CBC. In connection with any
Registration Statement, CBC shall furnish to the Company in writing such
information with respect to it as the Company may reasonably request or as may
be required by law for use in connection with any such Registration Statement or
Prospectus and CBC agrees to indemnify, defend and to hold harmless (in the same
manner and to the same extent as set forth in Section 10(a)), the Company and
any underwriter retained by the Company and each Person who controls (within the
meaning of the Securities Act and the Exchange Act) the Company or such
underwriter from and against any losses, claims, liabilities or expenses
(including the reasonable costs of investigation) which the Company or such
underwriter or such controlling Person may incur under the Securities Act or
otherwise, insofar as such loss, claim, liability or expense arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary Prospectus or
any amendment or supplement to any of the foregoing which is made in reliance on
or in conformity with any information furnished in writing to the Company by CBC
or such
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controlling Person or their respective counsel expressly for use therein or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in any
of such documents or necessary to make such information not misleading.
(c) Conduct of Indemnification Proceedings. The agreement of
each of the Company and CBC to indemnify the other and any other Person entitled
to indemnification hereunder (the "Indemnified Party") as aforesaid is expressly
conditioned upon the indemnifying party (the "Indemnifying Party") being
notified of the action for which the Indemnified Party intends to claim
indemnification or contribution by letter or telegram addressed to the
Indemnifying Party with reasonable promptness after the first legal process
which discloses the nature of the liability or claim shall have been served upon
such Indemnified Party (or after it shall have received notice of such service
upon any agent designated by it); provided, that the failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any liability
that it may have to the Indemnified Party otherwise than on account of the
indemnity agreement contained in this Section 10. The Indemnifying Party shall
be entitled to assume the defense of any suit brought to enforce any such
liability or claim including the employment of counsel and the payment of all
expenses. An Indemnified Party against whom such suit is brought shall have the
right to employ separate counsel in any such suit and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the employment of such counsel has
been specifically authorized by the Indemnifying Party or (ii) the named parties
to any such suit (including any impleaded parties) include such Indemnified
Party and the Indemnifying Party and such Indemnified Party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
Indemnifying Party, in which case the Indemnifying Party shall not have the
right to assume the defense of such action on behalf of such Indemnified Party,
it being understood, however, that the Indemnifying Party shall not, in
connection with any one such action or separate but substantially similar or
related actions 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 for all Indemnified Parties, which firm
shall be designated in writing by the Indemnified Parties. No Indemnifying Party
shall be liable for any settlement of any such action effected without its
consent (which shall not be unreasonably withheld or delayed).
(d) Contribution. If the indemnification provided for in
this Section 10 is unavailable to or insufficient to hold harmless an
Indemnified Party under subsections (a), (b) and (c) above for any reason other
than as specified therein in respect of any losses, claims, liabilities or
expenses referred to therein, then 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,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and the Indemnified
Party on the other in connection with the statements or omissions which resulted
in such losses, claims, liabilities or expenses, as well as any other relevant
equitable
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considerations. The relative fault of the Indemnifying Party on the one hand and
the Indemnified Parties on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, the Indemnifying Party or by an Indemnified
Party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, liabilities and expenses
referred to above shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with investigating or defending any claim
or action.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 10(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 10(d), no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of the
damages which such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and CBC
shall not be required to contribute any amount in excess of the amount by which
the total price at which its Registrable Securities were offered to the public
(net of all underwriting discounts and commissions) exceeds the amount of any
damages that CBC has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged 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 misrepresentation.
The obligations of the Company and CBC under this Section 10
shall be in addition to any liability that each of them may otherwise have.
(e) Survival. The indemnity and contribution covenants
contained in this Section 10 shall remain operative and in full force and effect
regardless of any sale of any Registrable Securities pursuant to this Agreement
or any termination or expiration of this Agreement.
11. Participation in Underwritten Offerings. CBC may not
participate in an underwritten offering hereunder unless it (a) agrees to sell
its securities on the basis provided in any underwriting arrangements customary
in connection with an underwritten public offering of shares of such securities
on a firm commitment basis and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
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12. Miscellaneous.
(a) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, from the provisions hereof except by a writing signed by the
parties hereto.
(b) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing and shall be made by hand
delivery, recognized overnight courier or telecopier:
(i) if to the Company, to:
The CIT Group Holdings, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Fax: (000) 000-0000
Telephone: (000) 000-0000
(ii) if to CBC, to:
CBC Holding (Delaware) Inc.
c/o Chemical Banking Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Mr. Xxxxx Xxxxx
Fax: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Chemical Banking Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxx, Esq.
Fax: (000) 000-0000
Telephone: (000) 000-0000
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and
Xxxxxxxx X. Xxxxxx III, Esq.
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; when delivered
by courier, if delivered by commercial overnight courier service; and when
receipt is acknowledged, if telecopied.
(c) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors of each of the parties hereto.
This Agreement and the rights and obligations of the parties hereunder may not
be assigned, provided, however, that CBC may assign its rights and obligations
hereunder to any transferee of the Registrable Securities pursuant to Section
3.04 of the Stockholders Agreement, dated as of December 29, 1989, among DKB,
Chemical Banking Corporation, as successor to Manufacturers Hanover Corporation,
and the Company, as amended by an Amendment thereto, dated December 15, 1995.
Any purported assignment in violation of this paragraph shall be void.
(d) Counterparts. This Agreement may be executed 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.
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to the principles of conflicts of law of such state.
(g) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights and privileges of CBC shall be enforceable to
the fullest extent permitted by law.
(h) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the
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agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be executed and delivered by their respective officers hereunto
duly authorized on the date first above written.
THE CIT GROUP HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
CBC HOLDING (DELAWARE) INC.
By:
--------------------------------------
Name:
Title:
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