EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of the
30th day of September, 1996 by and among FAIR, ▇▇▇▇▇ AND COMPANY, INCORPORATED,
a Delaware corporation (the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (collectively, the "Stockholders").
WHEREAS, the Company, the Stockholders and Credit & Risk Management
Associates, Inc., a Delaware corporation ("CRMA"), are parties to that certain
Agreement and Plan of Merger and Reorganization, dated the date hereof (the
"Merger Agreement"), pursuant to which, among other things, the Company agreed
to issue at the Closing and in future distributions, if any, to Stockholders
shares (the "Shares") of common stock, $.01 par value, of the Company ("Common
Stock") in exchange for all of outstanding capital stock of CRMA; and
WHEREAS, in connection with the transactions referred to above, the
Company and the Stockholders desire to provide for the rights of the Holders (as
hereinafter defined) with respect to the registration of the Shares according to
the terms of this Agreement.
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Definitions.
1.1 The term "Commission" means the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
1.2 The term "Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
1.3 The term "Holder" means each of the Stockholders and any person to
whom the registration rights conferred by this Agreement have been transferred
in accordance with Section 9.1 hereof.
1.4 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document;
1.5 The term "Registrable Securities" means (i) the Shares, and (ii)
Common Stock issued as a dividend, stock split or other distribution with
respect to, or in exchange for or in replacement of, the Shares; provided,
however, that any shares previously sold to the public pursuant to a registered
public offering or pursuant to Rule 144 under the Securities Act shall cease to
be Registrable Securities.
1.6 The term "Securities Act" means the Securities Act of 1933, as
amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
2. Registration.
2.1 During each twelve-month period following the closing of the
transaction contemplated by the Merger Agreement, the Holders collectively shall
have (a) the right to request one registration of Holders' Registrable
Securities for an offering to be made on a continuous basis pursuant to Rule 415
under the Securities Act or, alternatively (b) to register Holders' Registrable
Securities in connection with one other registration otherwise effected by the
Company. Any such request shall be made in writing by the Holder or Holders of
at least a majority of the Registrable Securities and shall state the number of
shares of Registrable Securities to be disposed of and the intended methods of
disposition of such shares by such Holder or Holders. Notwithstanding the
foregoing, the Company shall not be obligated to effect any such registration
pursuant to clause (a) if the Holder or Holders requesting such registration
propose to sell less than 12,500 Shares. If the Company is requested to effect a
registration in accordance with Section 2.1(a), regardless of the number of
shares for which registration is initially requested, and thirty days in advance
of filing any registration statement initiated by the Company, the Company shall
promptly give written notice of such requested registration to all Holders (the
"Company Notice"), who shall be permitted to join in such requested registration
upon written notice (which notice shall also state the number of shares of
Registrable Securities to be disposed of and the intended methods of
distribution) to the Company delivered within 10 days of the date of the Company
Notice.
2.2 The registrations provided for in Section 2.1(a) shall not be
underwritten.
3. Obligations of the Company.
Whenever requested under Section 2.1 of this Agreement to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
3.1 Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use its reasonable best efforts to
cause such registration statement to become effective, and keep such
registration statement continuously effective under the Securities Act until the
earlier of the expiration of 60 days after the date of declaration of
effectiveness of such registration statement by the Commission (the "Expiration
Date") or the date on which this Agreement has terminated pursuant to Section 7
of this Agreement with respect to all Holders of Registrable Securities. The
Company's obligations hereunder to file a registration statement and to keep a
registration statement continuously effective under the Securities Act shall be
suspended if (i) the fulfillment of such obligations would require the Company
to make a disclosure that would, in the reasonable judgment of the Company's
Board of Directors, be detrimental to the Company and premature, (ii) the
Company has filed or proposes to file within thirty (30) days after receipt of a
request for registration pursuant to Section 2.1 a registration statement with
respect to any of its securities to be distributed in an underwritten public
offering and it is advised by its lead or managing underwriter that an offering
by a Holder or Holders of Registrable Shares would materially adversely affect
the distribution of such securities, or (iii) the fulfillment of such
obligations would require the Company to prepare financial statements not
required to be prepared for the Company to comply with its obligations under the
Exchange Act. Such obligations shall be reinstated (x) in the case of clause (i)
above, upon the making of such disclosure by the Company (or, if earlier, when
such disclosure would either no longer be necessary for the fulfillment of such
obligations or no longer be detrimental), (y) in the case of clause (ii) above,
upon the conclusion of any period during which the Company would not, pursuant
to the terms of its underwriting arrangements, be permitted to sell Common Stock
for its own account and (z) in the case of clause (iii) above, as soon as it
would no longer be necessary to prepare such financial statements to comply with
the Securities Act. The Expiration Date shall be tolled for the duration of any
suspension pursuant to this Section 3.1 and for the duration of any period
described in clauses (i) - (iv) of Section 4.2 below. In the event that the
Company's obligations are suspended as provided above, the Company shall deliver
a certificate in writing, signed by an officer of the Company, to each Holder
participating in such registration, which shall state that its obligations
hereunder have been suspended in accordance with this Section 3.1 and the basis
for such suspension.
3.2 Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
3.3 Furnish to the Holders covered by such registration statement such
numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the disposition of such
Registrable Securities.
3.4 Use its reasonable best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders thereof, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
4. Obligations of the Holders.
4.1 It shall be a condition precedent to the obligations of the Company
to take any action pursuant to this Agreement that the selling Holders shall
furnish to the Company such information regarding themselves, the Registrable
Securities held by them, and the intended method of disposition of such
securities as shall be required to effect the registration of the Registrable
Securities.
4.2 Upon the receipt by a Holder of any notice from the Company of (i)
the existence of any fact or the happening of any event as a result of which the
prospectus included in a registration statement filed pursuant to Section 2, as
such registration statement is then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing, (ii) the existence of any facts or events resulting
in the suspension of the Company's obligations to file and keep effective a
registration statement as provided in Section 3.1 above, (iii) the issuance by
the SEC of any stop order or injunction suspending or enjoining the use or the
effectiveness of such registration statement or the initiation of any
proceedings for that purpose, or the taking of any similar action by the
securities regulators of any state or other jurisdiction, or (iv) the request by
the Commission or any other federal or state governmental agency for amendments
or supplements to such registration statement or related prospectus or for
additional information related thereto, such Holder shall forthwith discontinue
disposition of such Holder's Registrable Securities covered by such registration
or prospectus (other than in transactions exempt from the registration
requirements under the Securities Act) until such Holder's receipt of the
supplemented or amended prospectus or until such Holder is advised in writing by
the Company that the use of the applicable prospectus may be resumed or, in the
case of a notice pursuant to clause (ii) above, until the Company's obligations
referred to therein are no longer suspended; provided, however, that, except in
the circumstances described in clause (ii) above, the Company shall take such
reasonable actions as are necessary to permit the Holders to resume the
disposition of their Registrable Securities at the earliest practicable time.
5. Expenses.
The Company shall bear and pay all expenses incurred by the Company in
connection with any registration, filing or qualification of Registrable
Securities with respect to any registration pursuant to Section 2 hereof for
each Holder thereof, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees relating or apportionable
thereto, fees and disbursements of counsel for the Company, blue sky fees and
expenses, including fees and disbursements of counsel related to all blue sky
matters, but excluding the fees and disbursements of counsel for the selling
Holders, stock transfer taxes that may be payable by the selling Holders, and
all brokerage or similar commissions relating to Registrable Securities, which
shall be borne by the selling Holders.
6. Indemnification.
In the event any Registrable Securities are included in a registration
statement under this Agreement:
6.1 To the extent permitted by law, the Company will indemnify and hold
harmless each Holder of such Registrable Securities and each person, if any, who
controls such Holder within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively, a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law; and the Company will reimburse each such Holder or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 6.1 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder or controlling person.
6.2 To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the registration statement, each person, if any, who controls the
Company within the meaning of the Securities Act, and any other Holder selling
securities in such registration statement or any of its directors or officers or
any person who controls such Holder, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer or controlling person, or such other Holder or director, officer or
controlling person may become subject, under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such indemnifying Holder expressly for use in connection with such
registration; and each such indemnifying Holder will reimburse any legal or
other expenses reasonably incurred by the Company or any such director, officer,
controlling person, underwriter or controlling person, other Holder, officer,
director, or controlling person in connection with investigating or defending
any such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 6.2 shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the indemnifying Holder, which
consent shall not be unreasonably withheld; provided, that in no event shall any
indemnity under this Section 6.2 exceed the gross proceeds received by such
Holder from the sale of Registrable Securities pursuant to such registration
statement.
6.3 Promptly after receipt by an indemnified party under this Section 6
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
6, but the omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 6.
6.4 The obligations of the Company and Holders under this Section 6
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
7. Termination of Registration Rights.
The Company's obligations pursuant to this Agreement shall terminate as
to any Holder of Registrable Securities on the earlier of (i) the date when the
Holder can sell all of such Holder's shares pursuant to Rule 144 under the
Securities Act during any 90-day period or (ii) on the second anniversary of the
final distribution of Shares to the Stockholders pursuant to the Merger
Agreement.
8. Representations, Warranties and Other Covenants of the Company.
The Company hereby represents, warrants and covenants to the
Stockholders that:
8.1 When issued in accordance with the terms and conditions of the
Merger Agreement, the Shares will be validly issued, fully paid and
non-assessable.
8.2 The Company is current in making all filings with the Commission
required by law, and in the last 12 months, on a timely basis, has made all such
filings, and as of the date hereof is eligible to register the resale of the
Shares by the Holders on Form S-3.
8.3 The Company shall cause the legend on Shares to be removed upon the
request of any holder thereof at any time after two years from the date of
issuance, if the holder is not at the time of the request, and had not been for
the three months previous thereto, an affiliate of the Company.
9. Miscellaneous.
9.1 Successors and Assigns. This Agreement and all of the provisions
hereof shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto, but neither this Agreement nor any
of the rights, interests or obligations hereunder may be assigned, transferred
or delegated by any Holder to any person other than (i) executors,
administrators, legatees or heirs of such Holder and (ii) to a charitable
remainder trust described in Section 664 of the Internal Revenue Code, all of
the income beneficiaries of which are such Holder or members of such Holder's
immediate family. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors or permitted assigns, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
9.2 Notices. Unless otherwise provided, any notice, request, demand or
other communication required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon personal delivery to the
party to be notified, or when sent by telecopier (with receipt confirmed), or
overnight courier service, or upon deposit with the United States Post Office,
by registered or certified mail, postage prepaid and addressed as follows (or at
such other address as a party may designate by notice to the other):
If to the Company:
Fair, ▇▇▇▇▇ and Company, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
Pillsbury Madison & Sutro LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Stockholders:
c/o Credit & Risk Management Associates, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Miles & Stockbridge, P.C.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
9.3 Waivers. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the party against whom such
waiver is sought to be enforced. No waiver by either party of any default with
respect to any provision, condition or requirement hereof shall be deemed to be
a continuing waiver in the future thereof or a waiver of any other provision,
condition or requirement hereof; nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
9.4 Severability. If one or more provisions of this Agreement are held
to be unenforceable, invalid or void by a court of competent jurisdiction, such
provision shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms.
9.5 Entire Agreement; Amendments.
(a) This Agreement contains the entire understanding of the
parties with respect to the matters covered herein and supersedes all prior
agreements and understandings, written or oral, between the parties relating to
the subject matter hereof.
(b) Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the holders of a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each holder of any Registrable Securities
then outstanding, each future Holder of all such Registrable Securities, and the
Company.
9.6 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California (irrespective of its choice of law
principles).
9.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.8 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. Any reference in this Agreement to a
statutory provision or rule or regulation promulgated thereunder shall be deemed
to include any similar successor statutory provision or rule or regulation
promulgated thereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
FAIR, ▇▇▇▇▇ AND COMPANY, INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President & Secretary
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address:
