EXHIBIT 4.3
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NOTE RESALE REGISTRATION RIGHTS AGREEMENT
Dated as of August 20, 1996
by and among
RAC FINANCIAL GROUP, INC.
and
THE PURCHASERS NAMED HEREIN
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This Note Resale Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of August 20, 1996 by and among RAC Financial Group, Inc. a
Nevada corporation (the "COMPANY"), and Bear, Xxxxxxx & Co. Inc., Prudential
Securities Incorporated and Xxxxx Xxxxxxxx & Xxxxx, Inc. (collectively, the
"PURCHASERS"), which Purchasers have agreed to purchase from the Company up
to $100,000,000 principal amount of 7.25% Convertible Subordinated Notes due
2003 (the "NOTES") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated August
14, 1996 (the "PURCHASE AGREEMENT"), by and among the Company and the
Purchasers. In order to induce the Purchasers to purchase the Notes, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is provided for in
the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"ADVICE": As defined in Section 4(b) hereof.
"AGREEMENT": As defined in the preamble hereto.
"BROKER-DEALER": Any broker or dealer registered under the Exchange Act.
"BUSINESS DAY": A day other than a Saturday, a Sunday, a day on which
the banking institutions in the State and City of New York are authorized or
obligated by law or executive order to close or a day that is declared a
national or New York state holiday.
"CLOSING DATE": The date of this Agreement.
"COMMISSION": Securities and Exchange Commission.
"COMMON STOCK": Common Stock of the Company, par value $0.01 per share.
"COMPANY": As defined in the preamble hereto.
"COMPANY COUNSEL": As defined in Section 3(a)(ii) hereof.
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"CONSUMMATE": An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to the
New Notes to be issued in the Exchange Offer, (ii) the maintenance of such
Exchange Offer Registration Statement continuously effective and the keeping
of the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to consummate the
Exchange Offer, PROVIDED that in no event shall such period be less than 20
Business Days, and (iii) the delivery by the Company to the registrar under
the Indenture of New Notes in the same aggregate principal amount as the
aggregate principal amount of Notes that were tendered by Holders thereof
pursuant to the Exchange Offer.
"CONVERSION SHARES": The Shares of Common Stock or other securities
issuable upon conversion of the Notes or the New Notes.
"EFFECTIVENESS TARGET DATE": As defined in Section 3(a) hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"EXCHANGE OFFER": The registration by the Company under the Securities
Act of the New Notes pursuant to the Exchange Offer Registration Statement
through which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for New Notes in an
aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such
Holders.
"EXCHANGE OFFER REGISTRATION STATEMENT": As defined in Section 3(b)(i)
hereof.
"HOLDER": As defined in Section 2(b) hereof.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of August 20, 1996, by and between
the Company and the Trustee, pursuant to which the Notes are to be issued, as
such Indenture is amended, modified or supplemented from time to time in
accordance with the terms thereof.
"LOSSES": As defined in Section 6(a) hereof.
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"NASD": National Association of Securities Dealers, Inc.
"NEW NOTES": As defined in Section 3(b) hereof.
"NOTES": As defined in the preamble hereto.
"PERSON": A corporation, an association, a partnership, an individual,
a joint venture, a joint stock company, a trust, an unincorporated
organization or a government or an agency or political subdivision thereof.
"PROSPECTUS": The prospectus included in any Registration Statement, as
amended or supplemented including without limitation by any post-effective
amendments thereto, and all material incorporated by reference into such
prospectus.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"PURCHASERS": As defined in the preamble hereto.
"REGISTRATION STATEMENT": The Shelf Registration Statement or the
Exchange Offer Registration Statement of the Company that is filed pursuant
to the provisions of Section 3 hereof, including the Prospectus included
therein, all amendments and supplements thereto (including any post-effective
amendments) and all exhibits and material incorporated by reference therein.
"SECURITIES ACT": Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"SHELF FILING DEADLINE": As defined in Section 3(a) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 3(a) hereof.
"TIA": The Trust Indenture Act of 1939, as amended and in effect on the
date of the Indenture.
"TRANSFER RESTRICTED SECURITIES": Each Note, and any Conversion Shares
issued upon conversion of any Note, until the earliest to occur of (i) the
date on which such Note or Conversion Shares, as the case may be, has been
effectively registered under the Securities Act and disposed of in accordance
with an effective Shelf Registration Statement, (ii) the date on which such
Note is exchanged for a New Note in the Exchange Offer and entitled to be
resold to the public by the Holder thereof without complying with the
prospectus delivery
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requirements of the Securities Act and (iii) the date on which such Note or
Conversion Shares, as the case may be, is distributed to the public pursuant
to Rule 144 under the Securities Act or by a Broker-Dealer pursuant to the
"Plan of Distribution" contemplated by the Exchange Offer Registration
Statement (including delivery of the Prospectus contained therein).
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING": A registration
in which securities of the Company are sold to an underwriter for reoffering
to the public.
2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "HOLDER") whenever
such Person owns Transfer Restricted Securities of record.
3. REGISTRATION
(a) SHELF REGISTRATION. The Company hereby agrees to:
(i) use its best efforts to file or cause to be filed a continuous
registration statement pursuant to Rule 415 under the Securities Act
(together with the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits
and materials incorporated by reference therein, (the "SHELF REGISTRATION
STATEMENT") on or prior to the 90th day after the Closing Date (the "SHELF
FILING DEADLINE"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities; and
(ii) use all reasonable efforts to cause the Shelf Registration
Statement to be declared effective by the Commission as promptly as
practicable after the Closing Date (the "EFFECTIVENESS TARGET DATE").
Subject to any notice by the Company in accordance with Section 4(b) hereof
of the existence of any fact or event of the kind described in Section
4(b)(iii)(D) hereof, the Company shall use all reasonable efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended
as required by the provisions of Sections 4(a) and (b) hereof to the extent
necessary to ensure that it is
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available for resales of Transfer Restricted Securities by the Holders of
Transfer Restricted Securities entitled to the benefit of this Section 3(a)
and to ensure that the Shelf Registration Statement conforms to the
requirements of this Agreement, the Securities Act and the policies, rules
and regulations of the Commission as announced from time to time thereunder
for a period of at least three years following the Closing Date, PROVIDED
that the Company shall not be obligated to keep the Shelf Registration
Statement effective, if it has received an opinion from its outside counsel,
Jenkens & Xxxxxxxxx, a Professional Corporation, or other counsel reasonably
acceptable to the Purchasers ("COMPANY COUNSEL"), to the effect that the
Transfer Restricted Securities are freely tradable without the continued
effectiveness of the Shelf Registration Statement.
(b) REGISTERED EXCHANGE OFFER. If, based upon a written opinion of
Company Counsel addressed and delivered to the Holders, the Company
determines that it is permissible under applicable law and Commission policy
to Consummate an Exchange Offer, the Company may at its election Consummate
an Exchange Offer in lieu of filing and maintaining the Shelf Registration
Statement described herein. If the Company elects to Consummate an Exchange
Offer in accordance with the provisions hereof, the Company shall:
(i) cause to be filed with the Commission no later than the Shelf
Filing Deadline (or later if the Company has filed and maintained a Shelf
Registration Statement pursuant to this Agreement), a Registration Statement
(the "EXCHANGE OFFER REGISTRATION STATEMENT") under the Securities Act
relating to (A) a new issue of notes identical in all material respects to
the Notes except as to transfer restrictions (the "NEW NOTES") and (B) the
Conversion Shares issuable upon conversion of such New Notes;
(ii) use all reasonable efforts to cause the Exchange Offer
Registration Statement to become effective no later than the Effectiveness
Target Date;
(iii) in connection with the foregoing, file (A) all pre-effective
amendments to the Exchange Offer Registration Statement as may be necessary
in order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to the Exchange Offer Registration
Statement pursuant to Rule 430A under the Securities Act and (C) cause all
necessary filings in connection with the registration and qualification of
the New Notes to be made under the Blue Sky laws of such jurisdictions
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as are necessary to permit Consummation of the Exchange Offer; and
(iv) upon the effectiveness of the Exchange Offer Registration
Statement, commence the Exchange Offer.
The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. The Company shall cause the Exchange Offer
to comply with all applicable federal and state securities laws. No
securities other than the New Notes (and the Conversion Shares issuable upon
conversion of such New Notes) shall be included in the Exchange Offer
Registration Statement. The Company shall use all reasonable efforts to
cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in
no event later than 30 Business Days after such effectiveness. The Exchange
Offer shall be on the appropriate form permitting registration of the New
Notes to be offered in exchange for the Notes and to permit resales of New
Notes and Conversion Shares received by Broker-Dealers in the Exchange Offer
by delivering the Prospectus contained in the Exchange Offer Registration
Statement. The "Plan of Distribution" section in the Prospectus contained in
the Exchange Offer Registration Statement shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by Commission policy. The Company shall use
its best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended to the extent necessary to
ensure that it is available for resales of New Notes and Conversion Shares
issuable upon conversion of New Notes acquired by Broker-Dealers for their
own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of one year from the
date on which the Exchange Offer Registration Statement is declared
effective. The Company shall provide sufficient copies of the latest version
of such Prospectus to Broker-Dealers promptly upon request at any time during
such one-year period in order to facilitate such resales. Notwithstanding
anything herein to the contrary, despite the Consummation of an Exchange
Offer, the Company shall be required to file the Shelf Registration Statement
in accordance with Section 3(a) hereof if any Holder of Transfer Restricted
Securities shall notify the Company within 20 Business Days of the
Consummation of the Exchange Offer (x) that such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer,
(y) that such
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Holder may not resell the New Notes or Conversion Shares issuable upon
conversion of New Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder or (z) that such Holder is a Broker-Dealer and
holds Notes or Conversion Shares issuable upon conversion of New Notes
acquired directly from the Company or one of its affiliates.
4. REGISTRATION PROCEDURES
(a) In connection with any Shelf Registration Statement, the Company
shall comply with all the provisions of Section 4(b) below and shall use all
reasonable efforts to effect such registration to permit the resale of the
Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof. The parties hereto agree that the
Transfer Restricted Securities shall not be sold in any Underwritten Offering
and the Company shall in no event be required to cooperate with or pay for
any Underwritten Offering.
(b) In connection with any Registration Statement and any Prospectus
required by this Agreement, the Company shall:
(i) subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind described in
Section 4(b)(iii)(D) hereof, use all reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 of this Agreement;
upon the occurrence of any event that would cause such Registration Statement
or the Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resales of Transfer
Restricted Securities during the period required by this Agreement, the
Company shall file promptly an appropriate amendment to such Registration
Statement correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), except as set forth in Section 4(b)(xvi) below, use
all reasonable efforts to cause such amendment to be declared effective and
such Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to such Registration Statement as may be necessary to keep
such Registration
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Statement effective for the applicable period set forth in Section 3 hereof,
or such shorter period as shall terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented, cause the Prospectus to be filed pursuant to Rule 424 under
the Securities Act and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with respect to the disposition of
all securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by
the sellers thereof set forth in such Registration Statement or supplement to
the Prospectus;
(iii) advise the selling Holders promptly and, if requested by
such Persons, to confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment to any Registration
Statement has been filed, and, with respect to any Registration Statement or
any post-effective amendment thereto, when the same has become effective, (B)
of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the
Securities Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale in
any jurisdiction or of the initiation of any proceeding for any of the
preceding purposes or (D) of the existence of any fact or the happening of
any event (including without limitation pending negotiations relating to, or
the consummation of, a transaction or the occurrence of any event that would
require additional disclosure of material, non-public information by the
Company in the Registration Statement as to which the Company has a BONA FIDE
business purpose for preserving confidentiality or that renders the Company
unable to comply with Commission requirements) that makes untrue any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document incorporated
by reference therein, or that requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of the
Transfer
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Restricted Securities under state securities or Blue Sky laws, the Company
shall use its best efforts to obtain the withdrawal or lifting of such order
at the earliest possible time;
(iv) furnish to each of the selling Holders, upon request, before
filing with the Commission, copies of any Registration Statement or any
Prospectus included therein and any amendments or supplements thereto
(including all documents incorporated by reference prior to the effectiveness
of such Registration Statement), which documents, other than documents
incorporated by reference, shall be subject to the review of such Holders for
a period of at least 5 Business Days, and the Company shall not file any such
Registration Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus to which a selling Holder of
Transfer Restricted Securities covered by such Registration Statement shall
reasonably object within 5 Business Days after the receipt thereof; a selling
Holder shall be deemed to have reasonably objected to such filing only if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission;
(v) if practicable, promptly prior to the filing of any document
that is to be incorporated by reference into a Registration Statement or
Prospectus subsequent to the effectiveness thereof, and in any event no later
than the date such document is filed with the Commission, provide copies of
such document to the selling Holders, if requested, make representatives of
the Company available in person or by conference call for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such selling
Holders reasonably may request;
(vi) subject to having received reasonable assurances of
confidentiality from any such selling Holders, make available at reasonable
times for inspection by the selling Holders participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such selling Holder all financial and other records pertinent
corporate documents and properties of the Company and cause the officers,
directors and employees of the Company to supply all information reasonably
requested by any such selling Holder, attorney or accountant in connection
with such
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Registration Statement subsequent to the filing thereof and prior
to its effectiveness;
(vii) if requested by any selling Holder, promptly incorporate in
any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling
Holders may reasonably request to have included therein, the purchase price
being paid therefor and any other terms of the offering of the Transfer
Restricted Securities or New Notes (or Conversion Shares issuable upon
conversion of New Notes) to be sold in such offering; and make all required
filings of any such Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Notes or New Notes covered thereby;
(ix) deliver to each selling Holder, without charge, as many
copies of the Prospectus (including each preliminary prospectus intended for
public distribution) and any amendment or supplement thereto as such selling
Holder reasonably may request; subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact or event of
the kind described in Section 4(b)(iii)(D) hereof, the Company hereby
consents to the use of the Prospectus and any amendment or supplement thereto
by each of the selling Holders in connection with the offering and the sale
of the Transfer Restricted Securities or New Notes (or Conversion Shares
issuable upon conversion of New Notes) covered by the Prospectus or any
amendment or supplement thereto;
(x) subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kinds described in
Section 4(b)(iii)(D) hereof, take all such other customary actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities or New Notes (or Conversion Shares
issuable upon conversion of New Notes) pursuant to any Registration Statement
contemplated by this Agreement, all to
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such extent as may be requested by any Purchaser or by any Holder of Transfer
Restricted Securities in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement;
(xi) furnish to each Purchaser and each selling Holder, upon the
date of the effectiveness of the Shelf Registration Statement, and, to the
extent applicable, upon the Consummation of the Exchange Offer copies of the
following:
(A) a certificate, dated the date of effectiveness of the
Shelf Registration Statement (or, to the extent applicable, dated the date of
Consummation of the Exchange Offer) signed by (y) the president or chief
executive officer of the Company and (z) the chief financial officer or the
principal financial or accounting officer or the Company, confirming, as of
the date thereof, the matters set forth in Section 6(d)(i) and (iii) of the
Purchase Agreement and such other matters as such parties reasonably
requested at the time of effectiveness of the Shelf Registration Statement;
(B) opinions, dated the date of effectiveness of the Shelf
Registration Statement (or, to the extent applicable, dated the date of
Consummation of the Exchange Offer) of Company Counsel and Xxxxxx X. Xxxxxxx,
covering the matters set forth in Sections 6(a) and (b), respectively, of the
Purchase Agreement and addressed to all Purchasers and selling Holders; and
(C) comfort letters, dated as of the date of effectiveness of
the Shelf Registration Statement (and, to the extent applicable, as of the
date of Consummation of the Exchange Offer) from the independent certified
public accountants of the Company, in the customary form, addressed to all
Purchasers and selling Holders, and addressing the matters set forth in the
comfort letters delivered pursuant to Sections 6(e), (f) and (g) of the
Purchase Agreement, without exception;
(xii) deliver such other documents and certificates as were
reasonably requested at the time of effectiveness of the Shelf Registration
Statement by such parties to evidence compliance with clause (xi) above.
If at any time the representations and warranties of the Company indirectly
referenced in clause (xi)(A) above cease to be true and correct, the Company
shall so advise the Purchasers
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and each selling Holder promptly and, if requested by such Persons, shall
confirm such advice in writing;
(xiii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, and their respective counsel
in connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such domestic
jurisdictions as the selling Holders may request; and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; PROVIDED that the Company shall not be required to
register or qualify as a foreign corporation where it is not now so qualified
or to take any action that would subject it to service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any domestic jurisdiction where it is not now so
subject;
(xiv) cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable
such Transfer Restricted Securities to be in such denominations and
registered in such names as the selling Holders may request at least two
Business Days prior to any sale of Transfer Restricted Securities;
(xv) use all reasonable efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other domestic governmental agencies or authorities as may
be necessary to enable the selling Holder(s) thereof to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso
contained in clause (xiii) above;
(xvi) as soon as reasonably practicable after the occurrence of
any fact or event of the kind described in Section 4(b)(iii)(D) above,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
shall not contain an untrue statement of a material fact or omit to state any
material fact necessary, in light of the circumstances in which it was made,
to make the statements therein not misleading; PROVIDED that
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notwithstanding anything to the contrary herein, the Company shall not be
required to prepare and file such a supplement or post-effective amendment or
document if the fact no longer exists; and PROVIDED, FURTHER, that, in the
event of a material business transaction (including without limitation
pending negotiations relating to such a transaction) that, based upon the
advice of the Company Counsel, would require disclosure by the Company in the
Registration Statement of material, nonpublic information that the Company
has a BONA FIDE business purpose for not disclosing, then for so long as such
circumstances and such business purpose continue to exist, the Company shall
not be required to prepare and file a supplement or post-effective amendment
hereunder;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities or New Notes not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Notes or New Notes, as the case may be, that are in a
form eligible for deposit with The Depository Trust Company;
(xviii) use all reasonable efforts to cause such Registration
Statement to become effective;
(xix) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders, in a regular filing on Form 10-Q or Form 10-K, a
consolidated earnings statement meeting the requirements of Rule 158 (which
need not be audited) for the twelve-month period commencing after the
effective date of the Registration Statement;
(xx) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required to be
filed by this Agreement, and, in connection therewith, cooperate with the
Trustee and the Holders of Notes or New Notes, as the case may be, to effect
such changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use all
reasonable efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents required to
be filed with the Commission to enable such Indenture to be so qualified in a
timely manner;
(xxi) cause all Transfer Restricted Securities and Conversion
Shares issuable upon conversion of the New Notes
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covered by the Registration Statement to be listed on the Nasdaq National
Market; and
(xxii) provide promptly to each Holder upon request any document
filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any
fact or event of the kind described in Section 4(b)(iii)(D) hereof, such
Holder shall: (i) keep the fact of such notice confidential and (ii)
forthwith discontinue disposition of Transfer Restricted Securities pursuant
to the applicable Registration Statement until such Holder's receipt of the
copies of a supplemented or amended Prospectus as contemplated by Section
4(b)(xvi) hereof, or until it receives advice in writing (the "ADVICE") from
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder shall
deliver to the Company (at the expense of the Company) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice,
the time period regarding the effectiveness of such Registration Statement
set forth in Section 3 hereof 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 4(b)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the copies
of the supplemented or amended prospectus contemplated by Section 4(b)(xvi)
hereof or shall have received the Advice, PROVIDED that the time period
regarding the effectiveness of such Registration Statement set forth in
Section 3 hereof shall not be extended, if the Company has received an
opinion from Company Counsel to the effect that the Restricted Transfer
Securities can be freely tradable without the continued effectiveness of the
Shelf Registration Statement.
(c) In connection with the Exchange Offer, the Company shall comply
with all of the provisions of Section 4(b) (other than those that are not
applicable) and shall use its best efforts to effect such exchange to permit
the sale of Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof. In addition, prior to
effectiveness of the Exchange Offer Registration Statement, the Company shall
provide a
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supplemental letter to the Commission (i) stating that they are registering
the Exchange Offer in reliance on the position of the Commission enunciated
in EXXON CAPITAL HOLDINGS CORPORATION (available May 13, 1988), XXXXXX
XXXXXXX AND CO., INC. (available June 5, 1991) and, if applicable, any
no-action letter obtained by the Company and (ii) including a representation
that the Company has not entered into any arrangement or understanding with
any Person to distribute the New Notes to be received in the Exchange Offer
and that, to the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the New Notes in its
ordinary course of business and has no arrangement or understanding with any
Person to participate in the distribution of the New Notes received in the
Exchange Offer. As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate of the
Company, (B) it is not engaged in and does not intend to engage in and has no
arrangement or understanding with any person to participate in, a
distribution of the New Notes to be issued in the Exchange Offer and (C) it
is acquiring the New Notes in its ordinary course of business. In addition,
all such Holders of Transfer Restricted Securities shall otherwise cooperate
in the Company's preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder using the
Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in XXXXXX XXXXXXX AND CO., INC. (available June 5, 1991) and EXXON
CAPITAL HOLDINGS CORPORATION (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and similar
no-action letters and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a secondary
resale transaction and that such a secondary resale transaction should be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of New Notes obtained by such Holder in
exchange for Notes acquired by such Holder directly from the Company.
5. REGISTRATION EXPENSES
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The following expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company regardless of
whether a Registration Statement becomes effective, including: (i) all
registration and filing fees and expenses (including filings made by any
Purchaser or Holder with the NASD); (ii) all fees and expenses associated
with compliance with federal securities and state Blue Sky or securities laws
including the legal fees of Stroock & Stroock & Xxxxx or such other counsel
as may be chosen by the Holders of a majority in principal amount of the
Transfer Restricted Securities for whose benefit such Registration Statement
is being prepared; (iii) all expenses of printing or copying (including
printing of any certificates evidencing the Notes and printing or copying of
Prospectuses), messenger and delivery services and telephone; (iv) all fees
and disbursements of counsel for the Company; (v) all application and filing
fees in connection with listing any securities on a national securities
exchange or automated quotation system pursuant to the requirements hereof;
and (vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company shall, in any event, bear its own internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
6. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each Holder
and (ii) each person, if any, who controls (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) any Holder (any of
the persons referred to in this clause (ii) being hereinafter referred to as
a "CONTROLLING PERSON") and (iii) the respective officers, directors,
partners, employees, representatives and agents of any Holder or any
controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "INDEMNIFIED HOLDER"), to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities,
judgments, costs and expenses ("LOSSES") (including, without limitation and
as incurred, reimbursement of all costs of investigating, preparing, pursuing
or defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified
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Holder) directly or indirectly caused by, related to, based upon, arising out
of or in connection with any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or Prospectus (or any
amendment or supplement thereto) or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except (as to any Holder) insofar as such Losses
are caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to such Holder furnished in writing to the Company by such Holder
for use therein. The Company shall notify the Holders promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement that involves the Company or any Indemnified
Holder.
(b) In case any action or proceeding (including, without limitation,
any governmental or regulatory investigation or proceeding) shall be brought
or asserted against any of the Indemnified Holders with respect to which
indemnity may be sought against the Company, such Indemnified Holder (or the
Indemnified Holder controlled by such controlling person) shall promptly
notify the Company in writing (PROVIDED that the failure to give such notice
shall not relieve the Company of its obligations pursuant to this Agreement).
Any Indemnified Holder shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Holder,
PROVIDED that the fees and expenses of such counsel shall be at the expense
of the Company if (i) the Company has failed to assume the defense and employ
counsel reasonably satisfactory to the Holders or (ii) the named parties to
any such action (including any impleaded parties) include such indemnified
Holder and the Company and such Indemnified Holder shall have reasonably
concluded that there may be one or more legal defenses available to it that
are different from or in addition to those available to the Company;
PROVIDED, FURTHER, that the Company shall not in such event be responsible
hereunder for the fees and expenses of more than one firm of separate
counsel, which firm shall be designated by the Holders and shall be subject
to the Company's approval, not to be unreasonably withheld, in connection
with any action in the same jurisdiction, in addition to any local counsel.
The Company shall not be liable for any settlement of any such action or
proceeding effected without its prior written consent, which consent shall
not be unreasonably withheld or
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delayed, and the Company agrees to indemnify and hold harmless any
Indemnified Holder from and against any Loss by reason of any settlement of
any action effected with its written consent. The Company shall not, without
the prior written consent of each Indemnified Holder, settle or compromise or
consent to the entry of a judgment in or otherwise seek to terminate any
pending or threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
any Indemnified Holder is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional release of each
Indemnified Holder from all liability arising out of such action, claim,
litigation or proceeding.
(c) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, its
officers, and any person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) the Company, and the
respective officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity
from the Company to each of the Indemnified Holders, but only with respect to
claims and actions based on information relating to such Holder furnished in
writing by such Holder for use in any Registration Statement or Prospectus.
In case any action or proceeding shall be brought against any of Company or
its directors or officers or any such controlling person in respect of which
indemnity may be sought against a Holder of Transfer Restricted Securities,
such Holder shall have the rights and duties given the Company, and each of
the Company or its directors or officers of such controlling person shall
have the rights and duties given to each Holder by the proceeding paragraph.
In no event shall the liability of any selling Holder hereunder be greater in
amount than the dollar amount of the proceeds received by such Holder upon
the sale of the securities registered pursuant to provisions hereof giving
rise to such indemnification obligation.
(d) If the indemnification provided for in this Section 6 is
unavailable to a party entitled to indemnification in respect of any Losses
referred to herein, then each 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 (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on
the one hand and the Holders on the other hand from their sale of Transfer
Restricted Securities or (ii) if such allocation is not permitted by
applicable law,
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the relative fault of the Company on the one hand and of the Indemnified
Holder on the other in connection with the statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Indemnified Holder on the other 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 the Company or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The indemnity and
contribution obligations of each indemnifying party set forth herein shall be
in addition to any liability or obligation such indemnifying party may
otherwise have to any indemnified party, including under this Agreement.
The Company and each Holder of Transfer Restricted Securities agree that
it would not be just and equitable if contribution pursuant to this Section
6(d) were determined by pro rata allocation (even if the Holders were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of 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 referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Xxxxxxx 0, xxxx of
the Holders (and their related Indemnified Holders) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total proceeds received by such Holder with respect to the Notes exceeds the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 6(d) are several in proportion to the respective principal amount of
Notes held by each of the Holders hereunder and not joint.
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7. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any
sale thereof and any prospective purchase of such Transfer Restricted
Securities from such Holder or beneficial owner, any information required to
be supplied to a Holder by Rule 144A(d)(4) under the Securities Act in order
to permit offers and sales of such Transfer Restricted Securities pursuant to
Rule 144A.
8. MISCELLANEOUS
(a) REMEDIES. Each party agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by such
party of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company shall not, on or after the
date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder are not inconsistent with the rights granted
to the holders of the Company's securities under any agreement in effect on
the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of Holders of (i) a majority of the
outstanding principal amount of Notes, (ii) a majority of outstanding
principal amount of New Notes and (iii) a majority of the outstanding
Conversion Shares.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return-receipt requested), or courier
guaranteeing overnight delivery;
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(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company, to RAC Financial Group, Inc., 0000 Xxxx
Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx, 00000.
All such notices and communications shall be deemed to have been duly given
when delivered.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; PROVIDED that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and the remaining provisions
contained herein shall not be affected or impaired thereby.
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(j) ENTIRE AGREEMENT. This Agreement, together with the other
Transaction Agreements (as defined in the Purchase Agreement), is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
by the Company with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RAC FINANCIAL GROUP, INC.
By:_______________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:_______________________
Name:
Title:
On behalf of itself and the other
Purchasers named herein.
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