EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (the "Agreement"), dated as of April 1, 1998,
by and between Superior Financial Corp. (the "Company"), a Delaware corporation
and each of the undersigned Investors (hereinafter referred to individually as
an "Investor" and collectively as the "Investors").
WITNESSETH:
WHEREAS, the Company and each of the Investors have entered into a certain
Subscription Agreement providing for the purchase by the Investors of: (i) the
Company's Senior Notes due 2003 (the "Senior Notes"); or (ii) shares of the
Company's common stock, par value $.01 per share (the "Common Stock"); or (iii)
a combination of Senior Notes and Common Stock, in each case subject to the
terms and conditions set forth therein; and
WHEREAS, the Company desires to provide the Investors with certain
registration rights with respect to the Senior Notes and the shares of Common
Stock purchased pursuant to the Subscription Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein and for other good and valuable consideration, the receipt and the
sufficiency of which are hereby acknowledged, the Company and the Investors
agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Affiliate" shall mean, with respect to any Person, any Person
that, directly or indirectly, controls, is controlled by or is under common
control with such Person. For the purposes of this definition, "control"
when used with respect to any specified Person means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings corresponding to the
foregoing.
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(b) "Business Day" shall mean any day except a Saturday, Sunday or
other day on which commercial banks and savings institutions in the State
of Arkansas are authorized or obligated by law to close.
(c) "Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
(d) "Common Stock" shall mean the common stock, par value $.01 per
share, of the Company.
(e) "Depository" shall mean The Depository Trust Company, or any
successor depository appointed by the Company.
(f) "Effectiveness Period" shall have the meaning set forth in Section
3 of this Agreement.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "Holder" shall mean any holder of outstanding Registrable
Securities, including any Person to whom Registrable Securities have been
transferred in compliance with this Agreement.
(i) "Indenture" shall mean the Indenture dated as of April 1, 1998
between the Company and The Bank of New York, as trustee, as the same may
be amended from time to time in accordance with the terms thereof,
providing for the issuance of the Senior Notes.
(j) "Initiating Holders" shall mean one or more Holders of either: (i)
not less than 35% in aggregate principal amount of the Senior Notes or (ii)
not less than 35% of the shares of Common Stock then outstanding.
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(k) "Issue Date" shall mean the date of original issuance pursuant to
the Subscription Agreement of the Senior Notes and the shares of Common
Stock.
(l) "Noteholders" means a holder of the Senior Notes.
(m) "Person" shall mean an individual, a corporation, a partnership,
an association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
(n) "Prospectus" shall mean the prospectus included in a Shelf
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the offering
of any portion of the Registrable Securities, and by all other amendments
and supplements to a prospectus, including post-effective amendments, and
in each case including all material incorporated by reference therein.
(o) "Registrable Securities" shall mean (i) the Senior Notes and (ii)
the shares of Common Stock issued pursuant to the Subscription Agreement
and (iii) any shares of the capital stock (or rights to receive capital
stock) of the Company issued in respect of the Common Stock issued pursuant
to the Subscription Agreement by reason of, or in connection with, any
stock dividend, stock distribution, stock split, purchase in any rights
offering or in connection with any combination of shares, recapitalization,
merger or consolidation, or any other equity securities issued pursuant to
any other pro rata distribution with respect to the Common Stock issued
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pursuant to the Subscription Agreement. Notwithstanding the foregoing,
Registrable Securities shall not include otherwise Registrable Securities
(i) sold by an Investor to or through a broker or dealer or underwriter
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pursuant to a registered public offering or (ii) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof or Rule 144 thereunder, if in any
such case, all transfer restrictions and restrictive legends with respect
thereto, if any, are removed upon the consummation of such sale.
(p) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder.
(q) "Senior Notes" shall mean the Senior Notes due 2003 of the Company
issued by the Company pursuant to the Subscription Agreement.
(r) "Shelf Registration" shall have the meaning set forth in Section 3
of this Agreement.
(s) "Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 of this
Agreement which covers all of the Registrable Securities required to be
registered on an appropriate form for purposes of an offering on a
continuous basis pursuant to Rule 415 under the Securities Act, or any
similar rule that may be adopted by the Commission.
(t) "Subscription Agreement" shall mean the Subscription Agreement
between and among the Company and the Investors, as amended, supplemented
or otherwise modified from time to time.
(u) "TIA" shall mean the Trust Indenture Act of 1939, as amended.
(v) "Trustee" shall mean the trustee under the Indenture.
SECTION 2. RESTRICTIONS ON TRANSFERABILITY.
The Registrable Securities shall not be sold, transferred or otherwise
disposed of, except in accordance with and subject to the provisions of the
Securities Act and the rules and regulations of the Commission promulgated
thereunder.
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SECTION 3. SHELF REGISTRATION RIGHTS.
(a) The Company shall, at the Company's cost, subject to Section 6
hereof,
(i) within 120 days after the Issue Date, file with the
Commission, and thereafter use its best efforts to cause to be declared
effective as promptly as practicable, a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders
from time to time;
(ii) use its best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended under the
Securities Act in order to permit the Prospectus forming a part thereof to
be usable by Holders identified as selling security holders in such Shelf
Registration Statement for a period ending on the earliest of: (A) two
years from the date the Shelf Registration Statement is declared effective
by the Commission, (B) the date as of which all Registrable Securities
shall have been disposed of, (C) the date on which the entire amount of
Registrable Securities held by each Investor shall be saleable without
registration pursuant to Rule 144(k) (or any similar provision then in
effect)(the "Effectiveness Period"); and
(iii) notwithstanding any other provisions hereof, use its best
efforts to ensure that (A) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming a part thereof and any
supplement thereto complies in all material respects with the Securities
Act and the rules and regulations thereunder, (B) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (C) any Prospectus forming a part of any Shelf
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Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statement therein, in light of the circumstances under which they were
made, not misleading, except that the Company shall be entitled to rely on
the information provided to them in writing by the Holders with respect to
such Holders specifically included in such Prospectus.
(b) Any Holder desiring to sell Registrable Securities pursuant to the
Shelf Registration Statement shall provide not less than 30 days' prior
written notice to the Company. Any such notice shall specify the aggregate
principal amount of the Senior Notes or the number of shares of Common
Stock proposed to be sold and the intended method of disposition thereof.
The Company shall use its best efforts to promptly file any required
amendment(s) to the Shelf Registration Statement in order to facilitate any
sales of Senior Notes and/or Common Stock as described above.
(c) If Initiating Holders so elect at any time and from time to time
after the end of the second full calendar quarter following the purchase by
SFC Acquisition Corp. of Superior Federal Bank, an offering of such
Registrable Securities pursuant to such Shelf Registration shall be in the
form of an underwritten offering. If any offering pursuant to the Shelf
Registration is in the form of an underwritten offering, the Initiating
Holders will select and retain the investment banker or investment bankers
and manager or managers that will administer the offering; provided that
such investment bankers and managers must be reasonably satisfactory to the
Company. The right to participate in an underwritten offering shall be in
addition to, and not in limitation of, the right to sell Registrable
Securities pursuant to the Shelf Registration from time to time.
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SECTION 4. UNDERWRITTEN OFFERINGS.
(a) In connection with any underwritten offering of Company securities
pursuant to Section 3(c) hereof, the Holders of Registrable Securities to
be distributed by such underwriters shall be parties to the underwriting
agreement between the Company and such underwriters and any such
underwriting agreement shall require that the representations and
warranties by, and the other agreements on the part of, the Company to and
for the benefit of such underwriters also shall be made to and for the
benefit of such Holders and that the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall be
conditions precedent to the obligations of such Holders.
(b) No Holder may participate in any underwritten offering under
Section 3(c) unless such Holder (i) agrees to sell its Registrable
Securities on the basis provided in any underwriting arrangement approved
by the Company and (ii) completes and executes all questionnaires, powers
of attorney, indemnities, securities escrow agreements, underwriting
agreements and other documents required under the terms of such
underwriting, and furnishes to the Company such information as the Company
may reasonably request in writing for inclusion in the Shelf Registration
Statement (and the Prospectus included therein); provided, however, that no
Holder shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder and such Holder's intended
method of distribution and any other representation required by law.
(c) In the case of any underwritten offering of Company securities
pursuant to Section 3(c) hereof, the Company shall provide written notice
to the Holders of all of the Registrable Securities of such underwritten
offering at least 30 days prior to the filing of a Prospectus supplement
for such underwritten offering. Such notice shall (i) offer each such
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Holder the right to participate in such underwritten offering, (ii) specify
a date, which shall be no earlier than 10 days following the date of such
notice, by which the Holder must inform the Company of its intent to
participate in such underwritten offering and (iii) include the
instructions such Holder must follow in order to participate in such
underwritten offering.
(d) In the case of any underwritten offering of Company securities
pursuant to Section 3(c) hereof, if the managing underwriter shall advise
the Company in writing (with a copy to each Holder of Registrable
Securities requesting registration) that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering within a price range acceptable to the
Initiating Holders, the Company will include in such registration, to the
extent of the number which the Company is so advised can be sold in such
offering, Registrable Securities requested to be included in such
registration, pro rata among such Holders requesting such registration on
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the basis of the number of such Registrable Securities requested to be
included by such Holders. In connection with any such registration, no
securities other than Registrable Securities shall be covered by such
registration.
SECTION 5. REGISTRATION EXPENSES.
The Company will pay all registration expenses in connection with any
registration pursuant to Section 1 of this Agreement, including, without
limitation, all registration and filing fees, fees with respect to filings
required to be made with the National Association of Securities Dealers, fees
and expenses of compliance with securities or blue sky laws, the cost of any
special audit required by the Securities Act or the rules and regulations of the
Commission thereunder as a result of the Company's obligation to maintain a
Shelf Registration Statement current, printing expenses, and fees and expenses
of counsel for the Company and of independent public accountants of the Company
(including the expenses of any "comfort" letters and updates thereof required by
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or incident to the foregoing) and reasonable fees of counsel incurred by the
Investors not to exceed $25,000 in the aggregate for Holders of Senior Notes and
$25,000 in the aggregate for purchasers of shares of Common Stock in connection
with such registration, except that underwriting discounts and commissions,
underwriting expenses and transfer taxes, if any (other than discounts,
commissions, expenses and transfer taxes relating to securities offered and sold
by the Company), and cost of liability insurance (except to the extent carried
by the Company on its own behalf) shall not be borne by the Company.
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SECTION 6. REGISTRATION PROCEDURES.
Pursuant to its obligations under Section 3 hereof, the Company agrees it
will, as expeditiously as possible, subject to the terms and conditions of such
section:
(a) prepare and file with the Commission the requisite Shelf
Registration Statement to effect such registration, use its best efforts to
cause such Shelf Registration Statement to become effective and remain
effective in accordance with Section 3 and promptly notify each Holder of
Registrable Securities and any managing underwriter of the effectiveness
thereof; provided, however, that before filing any Registration Statement
or Prospectus or any amendments or supplements thereto, the Company, if
requested, shall furnish to and afford the Holders of Registrable
Securities, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed at least five business days prior to
such filing. The Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which the
Holders, pursuant to this Agreement, must be afforded an opportunity to
review prior to the filing of such document, if the Initiating Holders,
their counsel or the managing underwriters, if any, shall reasonably
object;
(b) prepare and file with the Commission such amendments and
supplements to such Shelf Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep such Shelf Registration
Statement effective or as may be reasonably requested by the Initiating
Holders, notify each Holder of Registrable Securities and any managing
underwriter as promptly as practicable of any request by the Commission or
the Initiating Holders for amendments or supplements to such Shelf
Registration Statement or related Prospectus or for additional information
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and comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities until such time as all of such
Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth
in such Shelf Registration Statement;
(c) (i) furnish without charge to each selling Holder of Registrable
Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, such number of conformed copies of such
Shelf Registration Statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
Prospectus contained in such Shelf Registration Statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents as such
selling Holder may reasonably request, in order to facilitate the public
sale or other disposition of the Registrable Securities and (ii) subject to
the penultimate paragraph of this Section 6, consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement
thereto, provided that such use complies with all applicable laws and
regulations;
(d) use its best efforts to register or qualify all Registrable
Securities under all applicable state securities or blue sky laws of such
jurisdictions as any Holder of Registrable Securities and each underwriter
of an underwritten offering of Registrable Securities shall reasonably
request, to keep such registration or qualification in effect for so long as
such Shelf Registration Statement remains in effect, and take any other
action which may be reasonably necessary or advisable to enable such Holder
and underwriter to consummate the disposition in such jurisdictions of the
securities owned by such Holder and underwriter, except that the Company
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shall not for any such purpose be required to (i) qualify generally to do
business as a foreign corporation or as a dealer in securities in any
jurisdiction wherein it would not but for the requirements of this Section
6(d) be obligated to be so qualified, (ii) subject itself to taxation in any
such jurisdiction if it is not then so subject or (iii) consent to general
service of process in any jurisdiction where it would not otherwise be
subject to such service of process;
(e) (i) cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates, if any, representing Registrable
Securities to be sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with the Depository and
(ii) cause such Registrable Securities to be in such denominations and
registered in such names as the selling Holders or the managing underwriters
may reasonably request at least two business days prior to the closing of
any sale of Registrable Securities;
(f) use its best efforts to cause all securities covered by such Shelf
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such securities;
(g) upon the occurrence of any circumstance contemplated by paragraphs
(b), (m), (n) or (o)(ii) of this Section 6, use its best efforts to prepare
a supplement or post-effective amendment to the Registration Statement and
the related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company agrees to notify
each Holder to suspend use of the Prospectus as promptly as practicable
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after the occurrence of any such circumstance, and each Holder hereby agrees
to suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
(h) obtain a CUSIP number for all Registrable Securities which are
Senior Notes, not later than the effective date of a Registration Statement,
and provide the Trustee with printed certificates for the Senior Notes in a
form eligible for deposit with the Depository;
(i) cause the Indenture to be qualified under the TIA in connection
with the registration of the Registrable Securities that are Senior Notes,
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use its best efforts
to cause the Trustee to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be filed with
the Commission to enable the Indenture to be so qualified in a timely
manner;
(j) enter into customary agreements (including, in the case of an
underwritten offering, an underwriting agreement in customary form) and take
all such other appropriate actions as are reasonably requested in order to
expedite or facilitate the registration or the disposition of such
Registrable Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration: (i) make such representations and
warranties to Holders of such Registrable Securities and the underwriters,
if any, with respect to the business of the Company and its subsidiaries and
the Registration Statement, the Prospectus and all documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
public offerings, and confirm the same if and when reasonably requested; and
(ii) if an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
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forth in Section 7 hereof (or such other provisions and procedures
acceptable to the Initiating Holders and the managing underwriters or
agents) with respect to all parties to be indemnified pursuant to said
section. The above shall be done at each closing under such underwriting
agreement, as and to the extent required thereunder;
(k) make available for inspection by any selling Holder of such
Registrable Securities being sold, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, accountant
or other agent retained by any such selling Holder or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable
them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and its subsidiaries to
supply all information in each case reasonably requested by any such
Inspector in connection with such Registration Statement;
(l) use its best efforts to furnish to each Holder of Registrable
Securities a signed counterpart, addressed to such Holder (and, in the case
of an underwritten offering by the Company, the underwriters), of
(i) an opinion of counsel for the Company, dated the
effective date of such Shelf Registration Statement (and, in case of an
underwritten offering by the Company, dated the date of each closing
under the underwriting agreement), reasonably satisfactory in form and
substance to such Holder, and
(ii) a "comfort" letter, dated the effective date of such
Shelf Registration Statement (and, in the case of an underwritten
offering, dated the date of each closing under the underwriting
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agreement), signed by the independent public accountants who have
certified the Company's financial statements included in such Shelf
Registration Statement, covering substantially the same matters with
respect to such Shelf Registration Statement (and the Prospectus
included therein) and with respect to events subsequent to the date of
such financial statements, as are customarily covered in accountants'
letters delivered to underwriters in underwritten public offerings of
securities and such other financial matters as such Holder (or the
underwriters) may reasonably request;
(m) immediately notify each Holder of Registrable Securities and any
managing underwriter, at any time when a Prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event or the failure of any event to occur or the discovery of any facts or
otherwise as a result of which such Shelf Registration Statement, as then in
effect, or any related Prospectus, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made, and at the request of any
such Holder or any such managing underwriter, promptly prepare and furnish
to such Holder or managing underwriter a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
Shelf Registration Statement or Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made;
(n) notify each Holder of Registrable Securities and any managing
underwriter as promptly as practicable after becoming aware of the issuance
by the Commission or any state securities authority of any stop order
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suspending the effectiveness of such Shelf Registration Statement or the
initiation of any proceedings for that purpose or the receipt by the Company
of any notification with respect to the suspension of qualification of any
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and make all reasonable
efforts to obtain as promptly as practicable the withdrawal of any order or
other action suspending the qualification of the Registrable Securities for
sale in any jurisdiction;
(o) notify each Holder of Registrable Securities, such Holder's counsel
and the managing underwriters, if any, (i) when a Registration Statement has
become effective and when any post-effective amendments and supplements
thereto become effective and (ii) if between the effective date of the Shelf
Registration Statement and the closing of any sale of Registrable
Securities, the representations and warranties of the Company contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to be true and correct in
all material respects;
(p) (i) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, (ii) make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date of
such Shelf Registration Statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act, and (iii) not file
any Shelf Registration Statement or Prospectus or amendment or supplement to
such Shelf Registration Statement or Prospectus to which any such Holder of
Registrable Securities shall have reasonably objected on the grounds that
such amendment or supplement does not comply in all material respects with
the requirements of the Securities Act, such Holder having been furnished
with a copy thereof at least five (5) Business Days prior to the filing
thereof;
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(q) cause the Indenture to be qualified under the TIA in connection
with the registration of the Senior Notes, and effect such changes to the
Indenture as may be required for it to be so qualified in accordance with
the terms of the TIA and execute, and use its reasonable best efforts to
cause the trustee under the Indenture to execute, all documents as may be
required to effect such changes, and all other forms and documents required
to be filed with the Commission to enable the Indenture to be so qualified
in a timely manner; and
(r) to file all reports required to be filed by it under the Exchange
Act and the rules and regulations adopted by the Commission thereunder in a
timely manner and, to the extent the Company's obligation to file such
reports pursuant to Section 15(d) of the Exchange Act expires prior to the
expiration of the Effectiveness Period, the Company shall register the
Registrable Securities under the Exchange Act and shall maintain such
registration through the Effectiveness Period.
Subject to Section 4(b) hereof, the Company may require each Holder of
Registrable Securities to furnish the Company with such information and
undertakings regarding such Holder and the distribution of such securities as
the Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees (i) that upon receipt of any
written notice from the Company of the happening of any event of the kind
described in paragraphs (b),(m),(n) or (o)(ii) of this Section 6, such Holder
will forthwith discontinue such Holder's disposition of Registrable Securities
pursuant to the Shelf Registration Statement relating to such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by this Section 6 or until it is advised in
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writing by the Company that the use of the applicable Prospectus may be resumed,
and, if so directed by the Company, will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies (which shall be
conspicuously marked as such), then in such Holder's possession of the
Prospectus relating to such Registrable Securities current at the time of
receipt of such notice and (ii) that it will immediately notify the Company, at
any time when a Prospectus relating to the registration of such securities is
required to be delivered under the Securities Act, of the happening of any event
as a result of which information previously furnished by such Holder to the
Company in writing specifically for inclusion in such Prospectus contains an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made. If the Company shall
give any such notice to suspend the disposition of Registrable Securities as a
result of the happening of any event of the kind described in paragraphs (b),
(m), (n) or (o)(ii) of this Section 6, the Company shall use its best efforts to
file and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Registration Statement and shall extend the
period during which such Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including the date when
the Company shall have made available to the Holders copies of the supplemented
or amended Prospectus necessary to resume such dispositions or shall have
advised the Holders in writing that the use of the applicable Prospectus may be
resumed.
No Holder of Registrable Securities may include any of its Registrable
Securities in any Shelf Registration Statement pursuant to this Agreement unless
and until such Holder furnishes to the Company in writing, within 15 days after
receipt of a request therefor, such information as the Company may, after
conferring with counsel with regard to information relating to Holders that
would be required by the Commission to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder
agrees to furnish promptly to the Company all information required to be
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disclosed in the applicable Shelf Registration Statement or Prospectus included
therein by the rules and regulations of the Commission applicable to the Shelf
Registration Statement in order to make the information previously furnished to
the Company by such Holder not materially misleading. The Company may exclude
from such registration the Registrable Securities of any seller who unreasonably
fails to furnish such information within 15 days after receiving such request.
SECTION 7. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each Holder of
Registrable Securities (a "Selling Holder"), its directors, each underwriter
and each controlling Person of any Selling Holder, if any, against any
losses, claims, damages or liabilities, joint or several (or actions in
respect thereof), including attorneys' fees and costs, to which such Selling
Holder, underwriter or controlling Person may be subject under the
Securities Act, under any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement (or alleged untrue
statement) of any material fact contained in any Shelf Registration
Statement under which such securities were registered under the Securities
Act, any Prospectus contained therein, including all documents incorporated
therein by reference, any other document used to sell the securities
(including an illegal prospectus) (collectively, the "Selling Documents"),
or any amendment or supplement thereto (an "Amended Selling Document"), or
(ii) any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein
(in light of the circumstances in which they were made with respect to any
Prospectus) not misleading, and shall reimburse each such Selling Holder,
its directors, underwriter or controlling Person for any legal or other
expenses reasonably incurred by such Selling Holder, its directors,
underwriter or controlling Person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable to any Selling Holder, its
directors, underwriter or controlling Person in any such event to the extent
that any loss, claim, damage or liability arises out of or is based upon any
19
untrue statement or omission made in such Selling Document, Amended Selling
Document, or any other document, in reliance upon and in conformity with
written information furnished to the Company by such Selling Holder, its
directors, underwriter or controlling Person, respectively, specifically for
use therein; and provided further that the Company shall not be liable under
this paragraph (a) with respect to any misstatement or omission or alleged
misstatement or omission in any Selling Document to the extent that any such
loss, claim, damage or liability results from the fact that the Selling
Holder, underwriter or controlling Person sold securities to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of any Amended Selling Document if the Company had
previously furnished copies thereof to such Selling Holder, underwriter or
controlling Person and if the misstatement or omission or alleged
misstatement or omission was corrected in the Amended Selling Document. The
indemnity provided for herein shall remain in full force and effect
regardless of any investigation made by or on behalf of such Selling Holder,
its directors, underwriter or controlling Person; provided, however that any
amounts advanced by the Company to an indemnified party pursuant to this
Section 7 as a result of such losses shall be returned to the Company if it
shall be finally judicially determined by such a court in a judgment not
subject to appeal or final review that such indemnified party was not
entitled to indemnification by the Company.
(b) As set forth in Section 6 hereof, each Selling Holder shall furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with the Shelf Registration
Statement and agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, each underwriter and each controlling
Person of the Company, if any, against any losses, claims, damages or
20
liabilities, joint or several (or actions in respect thereof), to which the
Company, its directors, such Selling Holder, underwriter or controlling
Person may be subject under the Securities Act or under any other statute or
at common law, insofar as such losses, claims, damages or liabilities, joint
or several (or actions in respect thereof), arise out of or are based upon
(i) any untrue statement (or alleged untrue statement) of any material fact
contained in such Shelf Registration Statement under which such securities
were registered under the Securities Act, any Selling Document or any
Amended Selling Document, or (ii) any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein (in light of the circumstances in which they
were made with respect to any prospectus) not misleading, and shall
reimburse the Company, its directors, such underwriter and controlling
Person for any legal or other expenses reasonably incurred by such Persons
in connection with investigating or defending any such loss, claim, damage,
liability or action; in each case, to the extent, and only to the extent,
that each untrue statement or omission (or alleged untrue statement or
omission) is made in reliance upon and in strict conformity with written
information furnished to the Company by such Selling Holder specifically for
inclusion in a Selling Document as to which the Company has not received
from the Selling Holder a written request that such information be
corrected, amended or supplemented prior to the use thereof in connection
with a sale of Registrable Securities.
(c) If the indemnification provided for in paragraph (a) or (b) above
is unavailable to an indemnified party in accordance with its terms in
respect of any losses, claims, damages or liabilities referred to therein,
then the obligations of each indemnitor thereunder shall be limited to such
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities, in such proportion as is appropriate to
reflect the relative fault of such indemnitor on the one hand and of the
21
indemnified parties on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of
each indemnitor and of the indemnified parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such indemnitor, or by the
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
--------
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities or actions in respect thereof referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expense reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of a 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. Notwithstanding the provisions of this Section 7, no Selling
Holder shall have any liability for an indemnity or contribution obligation
hereunder to the extent that such liability would exceed the amount by which the
total price at which the Registrable Securities sold by it exceeds the amount of
any damages which such person has otherwise been required to pay and has
actually paid by reason of such untrue or alleged untrue statement or omission
or alleged omission.
(d) Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnitor under paragraph (a) or
(b) above, as the case may be, notify the indemnitor in writing of the
commencement thereof; but the omission so to notify the indemnitor shall not
22
relieve it from any liability which it may have to any indemnified party
under such subsection unless the failure to provide such notice results in
the forfeiture by the indemnitor of substantial rights or defenses. In case
any such action shall be brought against any indemnified party, and it shall
notify the indemnitor of the commencement thereof, the indemnitor shall be
entitled to participate therein and, to the extent that it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnitor and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are in
addition to or in conflict with those available to the indemnitor, the
indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses (in which case the indemnitor shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties). Upon the permitted assumption by the indemnitor of the
defense of such action, and approval by the indemnified party of counsel,
the indemnitor shall not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof (other than
reasonable costs of investigation) unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence, (ii)
the indemnitor shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time, (iii) the indemnitor and its counsel do not actively and vigorously
pursue the defense of such action, or (iv) the indemnitor has authorized the
employment of counsel for the indemnified party at the expense of the
indemnitor. The indemnitor shall not be liable for any settlement of any
action or proceeding effected without its written consent, which consent
shall not be unreasonably withheld.
23
SECTION 8. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed
under the internal substantive laws of the State of New York.
(b) SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the parties and their respective
successors, assigns, heirs, executors and administrators. The rights and
obligations of any Holder hereunder may be assigned by such Holder to any
Person acquiring Registrable Securities from such Holder contemporaneously
with such assignment, provided that the rights so assumed shall apply only
to the Registrable Securities so acquired. The rights and obligations of
the Company hereunder may not be assigned by it without the prior written
consent of the Holders.
(c) ENTIRE AGREEMENT. This Agreement, the Subscription Agreement and,
with respect to the Senior Notes, the Indenture, constitute the full and
entire understanding and agreement among the parties with regard to the
subject matter hereof and no party shall be liable or bound to any other
party in any manner by any representations, warranties, covenants or
agreements except as specifically set forth herein or therein. Nothing in
this Agreement, express or implied, is intended to confer upon any party,
other than the parties hereto and their respective successors and assigns,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided herein.
(d) SEPARABILITY. Any invalidity, illegality or limitation of the
enforceability of any one or more of the provisions of this Agreement, or
any part thereof, shall in no way affect or impair the validity, legality
or enforceability of the other provisions of this Agreement. In case any
provision of this Agreement shall be invalid, illegal or unenforceable, it
shall, to the extent practicable, be modified so as to make it valid, legal
24
and enforceable and to retain as nearly as practicable the intent of the
parties, and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(e) AMENDMENT AND WAIVER. Any provision of this Agreement may be
amended and the observance of any provision of this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively, and either for a specified period of time or indefinitely),
with the written consent of the Company and the holders of not less than
two thirds of the both the aggregate principal amount of the Senior Notes
and the shares of Common Stock issued pursuant to the Subscription
Agreement; provided, however, that no such amendment or waiver shall reduce
the aforesaid percentage of aggregate principal amount of the Senior Notes
or shares of Common Stock issued pursuant to the Subscription Agreement
which are required to consent to any waiver or supplemental agreement
unless the consent of the holders of all outstanding Registrable Securities
are obtained. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon the Company and each Holder under this
Agreement. Upon the effectuation of each such amendment or waiver, the
Company shall promptly give written notice thereof to the Holders who have
not previously consented thereto in writing.
(f) DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any Holder upon any breach, default or
noncompliance of the Company under this Agreement shall impair any such
right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of
any similar breach, default or noncompliance thereafter occurring. It is
further agreed that any waiver, permit, consent or approval of any kind or
character on the Holders' part of any breach, default or noncompliance
under this Agreement or any waiver on the Holders' part of any provisions
or conditions of this Agreement must be in writing and shall be effective
only to the extent specifically set forth in such writing, and that all
remedies afforded to the Holders under this Agreement shall be cumulative
and not alternative.
25
(g) NOTICES, ETC. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing by hand-
delivery, registered first-class mail, telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to any Holder, initially at the address set forth below
its name on the Holder's signature page to this Agreement, and thereafter
at such other address, notice of which is given in accordance with this
Section 8(g); and
(ii) if to the Company, initially at Xxx Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Esq., facsimile:
(000) 000-0000, and thereafter at such other address notice of which is
given in accordance with this Section 8(g).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being sent by certified mail, return receipt requested, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery.
(h) TITLES AND SUBTITLES. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
(i) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SUPERIOR FINANCIAL CORP.
By: ________________________
Name: C. Xxxxxxx Xxxxxx
Title: Chairman of the Board
and Chief Executive Officer
27
Investor Signature Page to Registration Agreement
------------------------
Name
By:________________________
Name:
Title:
Address: _______________
------------------------
------------------------
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