Exhibit 4.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of September 11, 1995
between ALLSTATE FINANCIAL CORPORATION, a Virginia corporation
(the "Company"), and XXXXXXX CAPITAL MANAGEMENT, LP, a Delaware
limited partnership, and XXXXX PARTNERS, LP, a Delaware limited
partnership (collectively with Xxxxxxx Capital Management, LP and
their respective successors and assigns (which shall not include
Transferees, as hereinafter defined) the "Stockholders").
The parties hereto agree as follows:
SECTION 1. EXCHANGE OF COMMON STOCK; CLOSING.
1.1 Exchange of Common Stock. Subject to the terms
and conditions of this Agreement, the Company agrees to accept
for exchange at the Closing, and each of the Stockholders agrees
to tender to the Company for exchange at the Closing, the number
of shares (the "Shares") of common stock of the Company, no par
value per share (the "Common Stock"), set forth opposite such
Stockholder's name below. In exchange for the Shares, the
Company shall issue and each of the Stockholders shall accept
$1,000 in principal amount of the Company's Convertible
Subordinated Notes (the "Notes") for each 157.48 Shares owned by
it. The Notes shall be issued pursuant to an Indenture, dated as
of September 11, 1995, between the Company and Shawmut Bank
Connecticut, National Association, as Trustee (the "Trustee"), in
the form attached hereto as Exhibit A (the "Indenture"). Each
Stockholder shall receive Notes in such permitted denominations
as it shall direct. The Company shall only issue Notes in
denominations of $1,000 and multiples thereof, and will purchase
any Shares not therefor exchanged for Notes hereunder at and for
a price of $6.35 per Share.
Xxxxxxx Capital Management, LP
405,500 shares
Xxxxx Partners, LP 41,700
shares
1.2 Closing.
The consummation of the transactions contemplated
by Section 1.1 of this Agreement (the "Closing") shall take place
on September 11, 1995 at the offices of Xxxxxxxx & Xxxx, 780
Third Avenue, 29th Floor, New York, New York, at 9:00 A.M. (local
time) or at such other time, date or place as the Company and the
Stockholders shall agree. At the Closing, the Company shall
deliver to each Stockholder (x) the Notes acquired by it, duly
registered in such Stockholder's name and (y) a check in the
amount of the purchase price of any Shares not exchanged for
Notes hereunder against (i) duly registered certificates
representing the Shares of Common Stock purchased hereunder and
(ii) duly executed stock powers in form and substance sufficient
to convey the Shares of Common Stock purchased hereunder.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents, warrants and covenants to the
Stockholders that, as of the date hereof:
2.1 Organization and Corporate Power. The Company is
a corporation duly organized, validly existing and in good
standing under the laws of the State of Virginia, and is duly
qualified to do business as a foreign corporation in all other
jurisdictions in which such qualification is required. The
Company has all required corporate power and authority to own its
property, carry on its business as now conducted, and to enter
into and carry out all of its obligations under this Agreement,
the Indenture and the Notes, and to issue, sell and, with the
Trustee, deliver the Notes, and to carry out the transactions
contemplated hereby and thereby.
2.2 Authorization. This Agreement, the Indenture and
the Notes each constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms (except as such
enforcement may be limited by equitable principles and subject to
laws of general application relating to bankruptcy, insolvency
and the relief and rehabilitation of debtors), and the execution,
delivery and performance of this Agreement, the Indenture and the
Notes, and the issuance of the Notes and the shares of Common
Stock to be issued upon conversion of the Notes, have been duly
authorized by all necessary corporate action on the part of the
Company and no consent of any third party (other than consents
obtained on or prior to the date hereof and which remain in full
force and effect) is required to be obtained for the consummation
of the transactions contemplated hereby or thereby.
2.3 Effect of Transactions. The execution, delivery
and performance of this Agreement, the Indenture and the Notes,
and the issuance, sale and delivery by or on behalf of the
Company of the Notes, and the performance by the Company of the
transactions contemplated hereby and thereby do not, after giving
effect to waivers or consents obtained on or prior to the date
hereof and which remain in full force and effect, (a) conflict
with or result in a breach of the terms, conditions or provisions
of, (b) constitute a default under, (c) result in the creation of
any lien, security interest, charge or encumbrance upon the
capital stock (other than the reservation of shares of Common
Stock for issuance upon conversion of the Notes) or assets of the
Company or any of its subsidiaries pursuant to, (d) give any
third party the right to accelerate any obligation under, (e)
result in a violation of, or (f) require any authorization,
consent, approval, exemption or other action by or notice to any
court or administrative or governmental body pursuant to (i) the
Certificate of Incorporation or by-laws of the Company, (ii) any
agreement to which the Company or any of its subsidiaries is a
party or is bound or to which its assets are subject, or (iii)
any law, statute, rule, regulation, judgment, injunction, order
or decree to which the Company or any of its subsidiaries is
subject.
2.4 Capitalization; Reservation of Conversion Shares.
(a) Immediately prior to the Closing, the total authorized
capital stock of the Company shall consist of (i) 10,000,000
shares of Common Stock, 3,102,328 shares of which shall be issued
and outstanding, and 2,000,000 shares of Preferred Stock, none of
which shall be outstanding. All of the issued and outstanding
shares of the Company's capital stock have been duly authorized,
validly issued and are fully paid and non-assessable.
(b) The Company has reserved, and at all times shall
keep available, free from any preemptive rights, out of its
authorized but unissued Common Stock, enough shares of Common
Stock to permit the conversion of the Notes. All shares of
Common Stock which may be issued upon conversion of the Notes
shall be validly issued, fully paid and non-assessable. The
Company shall comply with all applicable securities laws
regulating the offer, sale and delivery of shares of Common Stock
upon conversion of the Notes.
2.5 No Material Adverse Change. Each document filed
by the Company since January 1, 1995 pursuant to the Securities
Exchange Act of 1934, as amended, does not contain a material
misstatement or omit to make a material statement required to be
made therein, in each case as of its date. Except for the
transactions contemplated by this Agreement, the Indenture and
the Exchange Offer contemplated in Section 5.2 hereof, (i) since
June 30, 1995, there has been no material adverse change in the
financial condition, assets, operations or capitalization of the
Company, (ii) since December 31, 1994, the Company has not formed
or acquired any new subsidiaries, (iii) since December 31, 1994,
the Company has not issued any options or warrants to buy capital
stock of the Company (except for options to purchase fewer than
1,100 shares of Common Stock granted to employees) and (iv) since
June 30, 1995, other than in the ordinary course of its business,
the Company has not entered into any material agreements or
understandings pursuant to which the Company, or any of its
subsidiaries, would be liable, directly or indirectly, for any
Indebtedness (as such term is defined in the Indenture).
2.6 No Default. Were the Indenture in effect as of
the Closing, after giving effect to the transactions contemplated
by this Agreement, the Indenture and the Notes, there would be no
Event of Default thereunder as of such date.
2.7 Exemption from Registration Requirements. The
exchange of Notes for shares of Common Stock contemplated by this
Agreement, when consummated pursuant to the terms hereof, will be
exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act") pursuant to Section 3(a)(9)
thereof ("Section 3(a)(9)"), and the Company has neither taken
any action nor allowed any condition to exist that would prevent
the application of such exemption to such exchange.
2.8 Registered Holders. As of the date hereof, the
Company does not have more that 250 shareholders of record.
2.9 Exemption from Trust Indenture Act. The Notes are
exempt from the requirements of the Trust Indenture Act of 1939,
as amended, and it is not necessary to qualify the Indenture
thereunder.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE
STOCKHOLDERS.
Each of the Stockholders represents, warrants and
covenants, severally but not jointly, to the Company that:
3.1 Organization and Power. Each of the Stockholders
is a limited partnership duly organized, validly existing and in
good standing under the laws of the State of Delaware, and is
duly qualified to do business as a foreign limited partnership in
all other jurisdictions in which such qualification is required.
Each of the Stockholders has all required power and authority to
own its property, carry on its business as now conducted and to
carry out the transactions contemplated hereby.
3.2 Authorization. This Agreement constitutes a valid
and binding obligation of each of the Stockholders, enforceable
in accordance with its terms (except as such enforcement may be
limited by equitable principles and subject to laws of general
application relating to bankruptcy, insolvency and the relief and
rehabilitation of debtors), and the execution, delivery, and
performance of this Agreement has been duly authorized by all
necessary action and no consent of any third party is required to
be obtained for the consummation of the transactions contemplated
hereby.
3.3 Effect of Transactions. The execution, delivery
and performance of this Agreement and the transactions
contemplated hereby do not (a) conflict with or result in a
breach of the terms, conditions or provision of, (b) constitute a
default under, (c) result in the creation of any lien, security
interest, charge or encumbrance upon either of the Stockholder's
assets pursuant to, (d) give any third party the right to
accelerate any obligation under, (e) result in violation of, or
(f) require any authorization, consent, approval, exemption or
other action by or notice to any court or administrative or
governmental body pursuant to (i) the limited partnership
agreement of either Stockholder, (ii) any agreement to which
either Stockholder is a party or is bound or to which its assets
are subject, (iii) any law, statute, rule, regulation, judgement,
injunction, order or decree to which either Stockholder is
subject.
3.4 Title. Neither Stockholder nor any of its
affiliates owns any shares of capital stock of the Company,
either directly or indirectly and of record or beneficially,
other than the Shares. Each of the Stockholders is the owner,
beneficially and of record, and has good title to the Shares
owned by it, free and clear of all liens, encumbrances, security
agreements, equities, options, adverse claims and interests and
restrictions whatsoever. The Company will acquire good,
marketable and indefeasible title thereto, free of any liens,
encumbrances, security agreements, equities, options, adverse
claims and interests and restrictions arising from or caused by
any act or omission of either of the Stockholders.
SECTION 4. COVENANTS OF THE STOCKHOLDERS.
From and after the execution and delivery of this
Agreement, each of the Stockholders (for itself and any entity
which it may at any time directly or indirectly control),
severally but not jointly, covenants and agrees with the Company
that:
(a) it will, for a period of five years from the date
hereof, refrain from purchasing or acquiring, either directly or
indirectly and of record or beneficially, any shares of Common
Stock or any other security of the Company convertible into or
exercisable for Common Stock, provided, however, that this
covenant shall not prevent either of the Stockholders from
converting the Notes, or any portion thereof, into Common Stock
upon the terms and pursuant to the conditions set forth herein
and in the Notes and the Indenture;
(b) it will not convert the Notes or any portion
thereof into Common Stock before the earlier of (i) March 1,
1997, or (ii) the date immediately preceding the date upon which
the Company consummates a transaction pursuant to which, pursuant
to the Indenture, the Stockholders would receive property or
assets other than the Company's Common Stock upon such
conversion; provided, however, that, subject to Section 4(c)
hereof, the Stockholders shall be allowed to convert the Notes or
any portion thereof into Common Stock at any time pursuant to the
terms of the Indenture, provided that all such Common Stock is
immediately sold to an unaffiliated third party;
(c) prior to December 31, 1996, it will not transfer,
convey or assign, (i) to any purchaser or transferee (which shall
include any Affiliate (as defined in the Rules and Regulations
promulgated pursuant to the 0000 Xxx) of such purchaser or
transferee), in any transaction or series of transactions, more
than 10% of the Registrable Securities (as hereinafter defined)
it holds without the prior written consent of the Company in its
sole discretion, or (ii) any of the Registrable Securities it
holds to any Affiliate of either of the Stockholders, unless such
Affiliate enters into an agreement restricting its subsequent
transfer, conveyance or assignment pursuant to the terms of this
Section 4 in form and substance reasonably satisfactory to the
Company; and
(d) all Notes issued to either of the Stockholders
shall contain a legend with respect to the restrictions set forth
in subsections (b) and (c) of this Section 4.
SECTION 5. COVENANTS OF THE COMPANY.
5.1 Board of Directors. The Company covenants and
agrees that (i) it shall, within ten days after the Stockholders
designate persons to serve as directors of the Company and the
Company has had sufficient opportunity to satisfy itself as to
the qualifications and suitability of such designees, take all
corporate action necessary to increase the number of directors of
the Company by two, if necessary, and appoint two persons
designated by the Stockholders to fill the vacancies thus created
until the Company's 1995 annual meeting of stockholders; (ii), so
long as the Stockholders own Notes or shares of Common Stock
having a combined value equal to at least $700,000 in aggregate
principal amount of Notes, where each share of Common Stock is
valued at $7.50 in principal amount of Notes, at each meeting of
the Company's shareholders, the Stockholders shall be allowed to
designate one person for nomination as a candidate for election
to the Board of Directors of the Company, which candidate shall
be supported for election by the management and Board of
Directors of the Company; (iii), so long as the Stockholders own
Notes or shares of common Stock having a combined value equal to
at least $1,415,000 in aggregate principal amount of Notes, where
each share of Common Stock is valued at $7.50 in principal amount
of Notes, at each meeting of the Company's shareholders, the
Stockholders shall be allowed to designate an additional person
for nomination as a candidate for election to the Board of
Directors of the Company, which candidate shall also be supported
for election by the management and Board of Directors of the
Company; provided, however, that at such time as the Stockholders
own less than $700,000 in aggregate principal amount of Notes,
any rights of the Stockholders pursuant to this Section 5.1 shall
terminate after the annual meeting of Company shareholders next
following such date; and provided further, however, that with
respect to any designee referred to in clauses (i), (ii) and
(iii) herein, (a) no event has occurred which would be required
to be disclosed pursuant to item 401(f) of Regulation S-K as
promulgated by the Securities and Exchange Commission (the
"SEC"), and (b) any such designee is approved by the Board of
Directors of the Company, which approval shall not be
unreasonably withheld. One of the Stockholders' designees shall
be appointed to the compensation committee and the other
designee, if any, shall be appointed to the audit committee of
the Board of Directors of the Company.
5.2 Exchange Offer to Other Shareholders. The Company
covenants and agrees that, within ninety days after the Closing,
it shall file with the SEC all preliminary documents necessary to
make, and shall use its best efforts to consummate, an offer to
the holders of the Company's Common Stock other than the
Stockholders (the "Other Stockholders") to issue up to $2,162,000
in aggregate principal amount of Notes to such Other Stockholders
in exchange for some or all of the shares of Common Stock held by
such Other Stockholders at the rate of $1,000 in principal amount
of Notes for each 157.48 shares tendered for exchange, which
exchange shall be exempt from the registration requirements of
the 1933 Act pursuant to Section 3(a)(9) thereof. If the Company
is not eligible to make the offer to Other Stockholders pursuant
to Section 3(a)(9) of the 1933 Act, the Company shall make, as
soon as practicable, an equivalent offer to Other Stockholders,
registered pursuant to the 1933 Act.
SECTION 6. REGISTRATION.
6.1 Registrable Securities. The term "Registrable
Securities" means (i) any Notes acquired by the Stockholders
pursuant hereto, and (ii) any Common Stock issued or issuable
with respect to the Notes owned by any Stockholder. Registrable
Securities will cease to be Registrable Securities when (i) a
registration statement with respect to such securities shall have
been declared effective under the 1933 Act, and such securities
shall have been sold or distributed pursuant to such registration
statement, or (ii) such securities have been sold or distributed
pursuant to Rule 144 under the 1933 Act.
6.2 Demand Registration Rights. The Company covenants
and agrees with the Stockholders (and any person or entity to
whom they have made a permitted transfer of Registrable
Securities (a "Transferee"), collectively, the "Holders") that
after receipt of a written request (a "Demand Request") from
Holders representing not less than 50% of the Registrable
Securities not previously registered but only if such Registrable
Securities consist of Notes or shares of Common Stock having a
combined value equal to at least $750,000 in aggregate principal
amount of Notes, where each share of Common Stock is valued at
$7.50 in principal amount of Notes, that such Holders desire and
intend to transfer all or a portion of the Registrable Securities
held by them under such circumstances that a public offering,
within the meaning of the 1933 Act will be involved (which Demand
Request shall specify the Registrable Securities so requested to
be registered, the proposed amounts thereof (including whether or
not the proposed offering is to be underwritten, in which case
the Demand Request shall specify the identity of the proposed
underwriter, which shall be subject to the approval of the
Company, which approval shall not be unreasonably denied)), the
Company shall promptly (but in any event within five (5) days)
give written notice (the "Registration Notice") of such requested
registration to all Holders, and thereupon the Company shall, as
expeditiously as possible (but in any event within forty-five
(45) days after receipt of the Demand Request by the Company)
file a registration statement (which may be pursuant to Rule 415
under the 1933 Act if so requested in the Demand Request) and use
its best efforts to cause such registration statement to become
effective under the 1933 Act with respect to the offering and
sale or other disposition of (i) the Registrable Securities set
forth in the Demand Request, for disposition in accordance with
the intended method or methods of disposition stated in the
Demand Request, and (ii) all other Registrable Securities which
the Holders thereof shall have requested in writing that the
Company register (which written request shall specify such
Registrable Securities and the proposed amounts thereof) within
twenty-five (25) days after receipt of the Registration Notice.
The Stockholders shall, within ten days of making a transfer of
Registrable Securities to a Transferee, notify the Company in
writing of the identity of such Transferee.
The Company shall be required (i) to maintain the
effectiveness of any such registration statement until the
earlier to occur of 270 days after the effective date of such
registration statement or consummation of the distribution by the
Holders of the securities covered by such registration statement
(but in any event, at least until the expiration of the 90-day
period referred to in Section 4(3) of the 1933 Act and Rule 174
thereunder, if applicable) (the "Termination Date"), provided,
however, that if at the Termination Date the Registrable
Securities are covered by a registration statement which also
covers other securities and which is required to remain in effect
beyond the Termination Date, the Company shall maintain in effect
such registration statement as it relates to Registrable
Securities for so long as it (or any substitute registration
statement) remains or is required to remain in effect for any of
such other securities, (ii) to comply with a Demand Request for
registration only if made prior to the date five (5) years from
the date hereof, and (iii) to comply with only one Demand Request
for registration pursuant to this Section 6.2. A registration
will not count as a Demand Request until the registration
statement relating thereto has become effective and remained
effective as set forth in the preceding sentence. In any
registration initiated under this Section 6.2, if the Company
complies with each requirement of the 1933 Act or the Commission
(as hereafter defined) within its power or ability to comply
with, the Holders of the Registrable Securities to be registered
pursuant to such Registration Statement shall pay (pro rata based
on the value of the Registrable Securities held by such Holder
being registered thereon) all Registration Expenses (as defined
in Section 6.5 hereof) in connection therewith, whether or not it
becomes effective. The Company shall not register any securities
other than Registrable Securities pursuant to any Demand Request.
6.3 Piggyback Registration Rights. The Company
covenants and agrees with the Stockholders that in the event the
Company at any time prior to September 11, 2000, proposes to file
a registration statement under the 1933 Act, including, without
limitation, a registration statement with respect to any class of
security (other than in connection with an exchange offer or a
registration statement on Forms S-4 or S-8 or any successor forms
thereto or other unsuitable registration statements), then the
Company shall in each case promptly give written notice of such
proposed filing to the Stockholders and such notice shall offer
to the Stockholders the opportunity to include their Registrable
Securities in such registration statement.
The Company shall permit, or shall cause the managing
underwriter of a proposed offering to permit, the Stockholders of
Registrable Securities with respect to which the Company has
received, within 30 days after the Company gives such notice, a
written request for inclusion in such registration statement to
include such securities in the proposed offering on the same
terms and conditions as applicable to the securities of the
Company included in such registration. Notwithstanding the
foregoing, if any such managing underwriter shall advise the
Company and such Stockholders in writing that, in its opinion,
the distribution of all or a portion of the Registrable
Securities requested to be included in the registration
concurrently with the securities being registered by the Company
could materially adversely affect the distribution of securities
by the Company for its own account, then the amount of
Registrable Securities of the Stockholders to be included in such
offering shall be reduced to the required level. All
Registration Expenses (as defined in Section 6.5) of such
registration under this Section 6.3 shall be borne by the
Company, whether or not such registration becomes effective
provided, however, that the Stockholders shall bear and be
responsible for all Registration Expenses attributable to the
inclusion of their Registrable Shares in the offering.
6.4 Registration Procedures. As used in Sections 6.4,
6.5, 6.6, 6.7, 6.8 and 6.9 hereof in reference to a registration
statement initiated pursuant to Section 6.3 hereof, the term
"Holder" shall refer only to the Stockholder. In connection with
any registration statement (the "Registration Statement") filed
pursuant to Section 6.2 or 6.3, the Company shall, as
expeditiously as possible:
(a) prepare and file the Registration Statement
with the Securities and Exchange Commission (the "Commission") on
any form for which the Company then qualifies or which counsel
for the Company deems appropriate and which is available for the
sale of the Registrable Securities in accordance with the
intended method of distribution thereof;
(b) before filing the Registration Statement or
prospectus or any amendments or supplements thereto, (i) furnish
to such counsel as is acceptable to the Holders of a majority of
the Registrable Securities being so registered ("Holders'
Counsel") copies of all documents proposed to be filed, which
documents will be subject to the review of such counsel, and (ii)
notify each Holder of any stop order issued or threatened by the
Commission and take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered;
(c) prepare and file with the Commission such
amendments and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as
may be necessary to keep the Registration Statement effective for
the periods required by this Section 6 and comply with the
provisions of the 1933 Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement
during such period in accordance with the intended methods of
disposition by the Holders set forth in the Registration
Statement;
(d) furnish to each Holder such number of copies
of the Registration Statement and of each amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in the Registration
Statement (including each preliminary prospectus) and such other
documents as any Holder may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by
the Holder;
(e) use its best efforts to cause the Registrable
Securities to be qualified for sale under the securities or blue
sky laws of such jurisdictions as any Holder reasonably requests
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the
disposition in such jurisdictions of the Registrable Securities
owned by such Holder; provided, however, that the Company shall
not be required under this Section 6.4(e) to qualify generally to
do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 6.4(e);
(f) use its 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 by virtue of the business and
operations of the Company to enable the Holders to consummate the
disposition of such Registrable Securities;
(g) notify each Holder at any time when a
prospectus relating thereto is required to be delivered under the
1933 Act of the happening of any event as a result of which the
prospectus included in the Registration Statement contains an
untrue statement of material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company will prepare
and file with the Commission and deliver to each Holder a
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of the Registrable Securities, such
prospectus will 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;
(h) make available for inspection by Holders'
Counsel, any Holder of Registrable Securities to be included in
such a registration, and any attorney, accountant or other agent
retained by Holders' Counsel (collectively, the "Inspectors"),
copies of all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the
"Records") as are reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information
reasonably requested by any such Inspector in connection with
such Registration Statement, provided that Records that the
Company determines, in good faith, to be confidential and which
it notifies the Inspectors are confidential shall not be
disclosed to the Inspectors, unless: (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or
omission in the Registration Statement; or (ii) the release of
such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction. Each Holder agrees that
such Holder will, upon learning that disclosure of such Records
is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(i) use its best efforts to obtain a letter from
the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by
"cold comfort" letters as the holders of the Registrable
Securities reasonably request;
(j) use its best efforts to cause all such
Registrable Securities to be listed or quoted on each securities
exchange or interdealer quotation system on which similar
securities issued by the Company are then listed or quoted, if
any;
(k) provide a transfer agent for such Registrable
Securities not later than the effective date of such Registration
Statement;
(l) enter into a cross-indemnity agreement and a
contribution agreement, each on customary terms, with each
underwriter, if any, and such other customary agreements
(including underwriting agreements on customary terms) and take
all such other actions as the Holders of a majority of the
Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities; and
(m) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission.
The Company may require each Holder to furnish to
the Company such information as may be necessary to be included
in the Registration Statement, including information regarding
the distribution of the Registrable Securities, as the Company
may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind
described in Section 6.4(g) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to the
Registration Statement until such Holder receives the copies of
the supplemented or amended prospectus contemplated by Section
6.4(g), and, if so directed by the Company, will deliver to the
Company all copies, other than permanent file copies then in the
Holder's possession, of the prospectus covering the Registrable
Securities current at the time of receipt of such notice. If the
Company gives any such notice, the period mentioned in Section
6.4(c) shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant
to Section 6.4(g) to and including the date when each Holder
received the copies of the supplemented or amended prospectus
contemplated by Section 6.4(g).
6.5 Registration Expenses. All registration and
filing fees, fees and expenses of compliance with securities or
blue sky laws, and reasonable fees and disbursements of counsel
for the Company and all independent certified public accountants
(including the reasonable expenses of any audit, special auditor
or "cold comfort" letter required by or incident to such
performance), printing costs and expenses, the reasonable fees
and expenses of any special experts retained in connection with
such registration, the reasonable fees and expenses of other
persons retained by the Company incurred in connection with the
registration hereunder are herein called "Registration Expenses."
Registration Expenses shall not include underwriting discounts,
commissions or fees attributable to the sale of the Registrable
Securities, which shall be paid by the Holders. All fees and
expenses of Holders' Counsel shall be borne by the Holders.
6.6. Indemnification by the Company. The Company also
agrees to indemnify, to the fullest extent permitted by law, each
Holder, its officers, directors and agents and each person who
controls each Holder (within the meaning of Section 15 of the
1933 Act), and any investment adviser thereof against all losses,
claims, damages, liabilities and expenses resulting from any
untrue statement of material fact or any omission of a material
fact required to be stated in the Registration Statement or
preliminary, final or summary prospectus included therein or
necessary to make the statements therein (in the case of a
preliminary, final or summary prospectus, in light of the
circumstances under which they were made) not misleading, except
insofar as the same are caused by or contained in any written
information with respect to such Holder furnished to the Company
by such Holder expressly for use therein or by such Holder's
failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto required by
Section 6.4(g) after the Company has furnished such Holder with a
sufficient number of copies of the same.
6.7 Indemnification by Holders. In connection with
any Registration Statement in which a Holder is participating,
each such Holder will furnish to the Company in writing such
information and affidavits with respect to such Holder as the
Company reasonably requests for use in connection with any such
Registration Statement or prospectus and agrees to indemnify, to
the fullest extent permitted by law, the Company and its
directors, officers and agents and each person who controls the
Company (within the meaning of Section 15 of the 0000 Xxx)
against any losses, claims, damages, liabilities and expenses
resulting from any untrue statement of a material fact or any
omission of a material fact required to be stated in the
Registration Statement or preliminary, final or summary
prospectus or any amendment thereof or supplement thereto or
necessary to make the statements therein (in the case of a
preliminary, final or summary prospectus, in light of the
circumstances under which they were made) not misleading, to the
extent, but only to the extent, that such untrue statement or
omission is contained in any written information or affidavit
with respect to such Holder so furnished by such Holder.
6.8 Conduct of Indemnification Proceedings. Any
person entitled to indemnification hereunder (an "indemnified
party") agrees to give prompt written notice to the party from
whom indemnification is sought (the "indemnifying party") after
the receipt by such person of any written notice of the
commencement of any action, suit, proceeding or investigation or
threat thereof (collectively, a "Claim") made in writing for
which such person will claim indemnification or contribution
pursuant to this Agreement. The failure of any indemnified party
so to notify an indemnifying party of any Claim shall relieve the
indemnifying party from any liability in respect of such Claim
that it may have to such indemnified party on account of the
indemnification agreement contained in this Section 6, unless
such indemnified party can establish that the indemnifying party
has not been prejudiced in its ability to defend against or
settle such Claim by such failure. In addition, any failure to
give such notice shall not relieve the indemnifying party from
any other liability that it may have to such indemnified party.
Notice given within 20 days of commencement of the Claim shall be
conclusively presumed not to affect adversely the indemnifying
party's ability to defend or settle the Claim. Unless in the
reasonable judgment of such indemnified party a conflict of
interest may exist between such indemnified party and the
indemnifying party with respect to a Claim, the indemnified party
shall permit the indemnifying party to participate in and assume
the defense of such Claim with counsel reasonably satisfactory to
such indemnified party. If such indemnified party has a
reasonable basis to believe, and does believe, that its interests
in such action conflict with those of the indemnifying party, the
indemnified party may so notify such indemnifying party and the
indemnifying party will remain liable to such indemnified party
for all legal or other expenses incurred by such indemnified
party in connection with the defense of such Claim. If the
indemnifying party is not entitled to, or elects not to, assume
the defense of a Claim, it will not be obligated to pay the fees
and expenses of more than one counsel with respect to such Claim,
unless in the reasonable judgment of such indemnified party a
conflict of interest may exist between such indemnified party and
any other of such indemnified parties with respect to such Claim,
in which event the indemnifying party shall be obligated to pay
the fees and expenses of such additional counsel or counsels.
The indemnifying party will not be subject to any liability for
any settlement made without its consent, which consent shall not
be unreasonably withheld or delayed. If the indemnifying party
assumes the defense of a Claim, the indemnifying party shall not,
in such defense, consent to the entry of any judgment without the
prior written consent of the indemnified party (which shall not
be unreasonably withheld or delayed), or consent to the entry of
any judgment or enter into any settlement which does not include
as an unconditional term thereof the giving by the claimant or
plaintiff to the indemnified party of a release from all
liability in respect of such claim or litigation.
6.9 Contribution. If the indemnification provided for
in this Section 6 from the indemnifying party is unavailable to
an indemnified party hereunder in respect of any losses, claims,
damages, 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, 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 Claims 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
Claims in question, including any untrue or alleged untrue
statement of a material fact, has been made 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 action.
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 any legal or other fees or expenses
reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6.9 were
determined by pro rata allocation or by any other method or
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person.
6.10 Information by Holders. Each Holder of
Registrable Securities, holding securities included in any
registration under this Section 6, shall furnish to the Company
such information regarding such Holder and the distribution
proposed by such Holder as the Company may reasonably request in
writing.
6.11 "Market Stand-Off" Agreements. The Stockholders
agree, if requested by the Company and an underwriter of Common
Stock (or other securities) of the Company, not to sell or
otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by the Stockholders during the
120 day period following the effective date of a registration
statement filed under the 1933 Act covering such Common Stock (or
other securities) if such Stockholders have elected not to
participate in such registration or to register only a portion of
their Registrable Securities, without the prior written consent
of the Company or such underwriter, as the case may be. Such
agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop-
transfer instructions with respect to the securities subject to
the foregoing restriction until the end of said 120 day period.
SECTION 7. INDEMNIFICATION.
7.1 Indemnification of Stockholders. The Company
agrees to indemnify and hold harmless, to the extent permitted by
law, each of the Stockholders, its partners and employees and
each person who controls such partner or such Stockholder (within
the meaning of the 0000 Xxx) against all losses, claims, damages,
liabilities and expenses caused by any breach of the
representations, warranties, covenants and agreements of the
Company contained in this Agreement.
7.2 Indemnification of Company. The Stockholders
agree, severally but not jointly, to indemnify and hold harmless,
to the extent permitted by law, the Company, its officers and
directors and each person who controls the Company (within the
meaning of the 0000 Xxx) against all losses, claims, damages,
liabilities and expenses caused by any breach of the
representations, warranties, covenants and agreements of the
Stockholders contained in this Agreement.
7.3 Indemnification in General. The indemnification
rights called for by this Section 7 are (i) in addition to any
indemnification provided in Section 6 hereof, and (ii) not
subject to any limitations or procedures set forth in Section 6
hereof.
SECTION 8. RELEASES.
8.1 Release by the Stockholders. Each of the
Stockholders, in consideration of the transactions contemplated
in this Agreement, the receipt and sufficiency of which is hereby
acknowledged, for itself, its legal representatives and assigns,
hereby releases and discharges the Company and each of its
Affiliates from any and all actions, causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills,
covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, liabilities,
obligations, proceedings, executions, claims and demands
whatsoever, in law, admiralty or equity, known or unknown, in its
own right or derivatively (collectively, "Existing Claims", which
term shall exclude any claim arising from or pursuant to (i) this
Agreement, (ii) the Notes or (iii) the Indenture) which each of
the Stockholders and their respective predecessors, affiliates,
successors, and assigns, individually or collectively, ever had
or now has or hereafter can, shall or may have against the
Company and its current or former Affiliates (or any of them)
for, upon, or by reason of any matter, cause or thing whatsoever
from the beginning of time to the date of this Agreement.
8.2 Release by the Company. The Company, in
consideration of the transactions contemplated in this Agreement,
the receipt and sufficiency of which is hereby acknowledged, for
itself and its legal representatives, successors and assigns,
hereby releases and discharges each of the Stockholders and each
of its current or former Affiliates from any and all Existing
Claims which the Company and its predecessors, successors and
assigns, individually or collectively, ever had, now has or
hereafter can, shall or may have against either of the
Stockholders or any of their current or former Affiliates (or any
of them) for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of time to the date of this
Agreement.
SECTION 9. CONDITIONS OF CLOSING.
The obligations of the Stockholders under Section
1 of this Agreement shall be conditioned upon receipt by the
Stockholders of a copy of a written agreement with the Company,
in form and substance reasonably satisfactory to the
Stockholders, from Xx. Xxxx Xxxxxxx and Xx. Xxxxxx Xxxxxx,
pursuant to which Xx. Xxxxxxx and Xx. Xxxxxx, solely in their
capacity as shareholders, shall agree that (i) they shall not
exchange any shares of Common Stock they own for Notes pursuant
to the Exchange Offer for Other Shareholders described in Section
5.2 hereof, and (ii) they shall vote all voting securities owned
by them in favor of the election of the persons designated by the
Stockholders pursuant to Section 5.1 hereof for nomination as
directors of the Company at any annual meeting of the
shareholders of the Company referred to in such Section 5.1.
SECTION 10. MISCELLANEOUS.
10.1 Payment of Expenses. Each of the parties hereto
shall pay all of their own expenses relating to the transactions
contemplated by this Agreement including, without limitation, the
fees and expenses of their respective counsel.
10.2 Survival of Representations. The representations,
warranties, covenants, and agreements made herein shall survive
until the fifth anniversary of the execution hereof; provided,
however, that the agreements set forth in Sections 2.4(b), 5,
6.6, 6.7, 6.8, 6.9, 7 and 8 hereof shall survive indefinitely.
10.3 Brokerage.
(a) The Company represents and warrants that
there are no claims for brokerage commissions, finders' fees or
similar compensation in connection with the transactions
contemplated by this Agreement, based on any arrangement or
agreement made by or on behalf of the Company. The Company shall
indemnify and hold the Stockholders harmless against any claim
for such compensation.
(b) The Stockholders represent and warrant that
there are no claims for brokerage commissions, finders' fees or
similar compensation in connection with the transactions
contemplated by this Agreement, based on any arrangement or
agreement made by or on behalf of the Stockholders. The
Stockholders shall indemnify and hold the Company harmless
against any claim for such compensation.
10.4 Incorporation by Reference. All schedules and
exhibits to this Agreement and all documents delivered pursuant
to or referred to in this Agreement are incorporated herein by
reference and made a part hereof.
10.5 Parties in Interest. All covenants, agreements,
representations, warranties and undertakings in this Agreement
made by and on behalf of any of the parties hereto shall bind and
inure to the benefit of their respective successors and assigns
and the terms "Stockholders" and "Stockholder" herein shall apply
to the successors and assigns (which shall not include
Transferees) of any Stockholder.
10.6 Governing Law, Severability. This Agreement,
together with the rights and obligations of the parties
hereunder, shall be governed by, construed and enforced in
accordance with the laws of the State of New York without giving
effect to the conflict of laws provisions thereof. In the event
any provision of this Agreement or the application of any
provision to any party shall be held by a court of competent
jurisdiction to be contrary to law, the remaining provisions of
this Agreement shall remain in full force and effect.
10.7 Notices. All notices, requests, consents and
demands shall be in writing and shall be deemed to have been
sufficiently given if sent, postage prepaid, by registered or
certified mail, return receipt requested:
To the Company: Allstate Financial Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX
Attn: Xxxxx Xxxxxxx, General Counsel
Copy to: Xxxxxxxx & Xxxx
000 Xxxx Xxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
To either Stockholder:
Xxxxxxx Capital Management, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Copy to: Kramer, Levin, Naftalis, Nessen,
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
with or to such other address as may from time to time be
furnished in writing to the other parties hereto.
10.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
10.9. Captions. The captions and headings of this
Agreement are for convenience only and are not to be construed as
defining or limiting the scope or intent of any of the provisions
hereof.
10.10 Complete Agreement. This document embodies
the complete agreement and understanding between and among the
parties hereto with respect to the subject matter hereof, and
supersedes and preempts any prior understandings, agreements, or
representations by or among the parties, written or oral, which
may have related to the subject matter hereof.
10.11 Arbitration. Any and all disputes arising
out of, under, in connection with, or relating to this Agreement
shall be finally settled by arbitration in the City of New York,
or in such other place as the parties hereto agree, in accordance
with the rules then in effect of the American Arbitration
Association. The board of arbitrators shall be composed of three
arbitrators, each being qualified to make evaluations of the kind
under dispute. Each of the two parties to such arbitration shall
appoint one arbitrator and the two arbitrators so appointed shall
appoint the third arbitrator within thirty days after their
appointment. If either party fails to appoint its arbitrator
within fifteen days after written request by the other party,
either party may request the President of the American
Arbitration Association to make such appointment within fifteen
days after such request to the President. The arbitration award
shall be final and binding on the parties and may include costs,
including attorneys' fees. Any arbitration award may be enforced
in any court having jurisdiction over the party against which
enforcement is sought.
SECTION 11. TERMINATION OF OBLIGATIONS.
The obligations of the Stockholders set forth in
Section 4 and in Section 6.11 shall terminate at such time as the
Company has (i) failed to make three consecutive interest
payments on the Notes, which payments shall not have been
subsequently made, or (ii) failed to redeem or repurchase or
otherwise make any payment of principal when due or required on
the Notes pursuant to the Indenture (, including for purposes of
clause (i) and (ii), any failure to pay interest or principal on,
or to redeem or repurchase, the Notes that results from the
application of the provisions of Article VIII of the Indenture or
the Required Lenders not having given any requisite consent);
provided, however that any termination pursuant to this Section
11 shall not occur earlier than the earlier of (x) the 1996
annual meeting of the Company's shareholders, or (y) August 15,
1996.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first set forth above.
ALLSTATE FINANCIAL CORPORATION
By Xxxxxxxx X. Xxxxxxx
Its Secretary and Treasurer
XXXXXXX CAPITAL MANAGEMENT,
L.P.
By: S&E PARTNERS, L.P.,
Its General Partner
By: XXXXXXX, INC.,
Its General Partner
By: Xxxxx Xxxxxx
XXXXX PARTNERS, L.P.
By Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Its Sole General Partner
