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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made as of
December 15, 2000, by and among NATIONAL AUTO CREDIT, INC. ("NAC"), a Delaware
corporation, and (each of the following, a "SHAREHOLDER," and all of the
following together, collectively, the "SHAREHOLDERS") Xxxxxx X. Xxxxxx, XX,
Verde Reinsurance Company, Ltd., a Nevis Island corporation, Xxxxx Xxxxxx III
2000 Trust, Xxxxx Xxxxxx 2000 Trust, Xxx Xxxxx, Xxxxxx Xxxxxxx, Xxxx Xxxxxx,
Xxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxx, and
Xxxxx Xxxxxx.
W I T N E S S E T H :
WHEREAS, NAC, ZLT Acquisition Corp. ("ZLT"), a Delaware corporation wholly
owned by NAC, ZoomLot Corporation ("ZOOMLOT"), a Delaware corporation, and the
Shareholders have entered into a Merger Agreement And Plan Of Reorganization,
dated as of even date herewith (the "MERGER AGREEMENT");
WHEREAS, pursuant to the Merger Agreement, upon the consummation of the
merger transactions contemplated by the Merger Agreement, the Shareholders are
to acquire certain shares of NAC's common stock ("COMMON STOCK"), par value $.05
per share, and certain shares NAC's Series B preferred stock and Series C
preferred stock (respectively, "SERIES B PREFERRED STOCK" and "SERIES C
PREFERRED STOCK" and, collectively, "Preferred Stock"), each par value $__ per
share, (such shares of Common Stock and such shares of Preferred Stock,
collectively, the "NAC MERGER SHARES") in exchange for their shares of the
common stock of ZoomLot, and those shares of Series C Preferred Stock (the
"Forfeitable Shares") are subject to forfeiture depending upon the achievement
of certain financial objectives by the surviving corporation in the Merger;
WHEREAS, each of the Shareholders has entered into a Lockup, Standstill
and Voting Agreement (the "STANDSTILL AGREEMENT") with NAC, dated as of even
date herewith, for the benefit of NAC; and
WHEREAS, as a condition to the closing of the Merger Agreement, NAC and
the Shareholders have agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS
1.1 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended;
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1.2 "HOLDER" shall mean the registered holder of NAC Merger Shares or any
shares of Common Stock that have been issued in lieu of any cash payment due
upon the redemption of any shares of Preferred Stock. Notwithstanding anything
contained herein to the contrary, a "HOLDER" shall not include any person or
entity who or that, as a donee, assignee or transferee or otherwise, has
acquired any NAC Merger Shares or any shares of Common Stock that have been
issued in lieu of any cash payment due upon the redemption any shares of
Preferred Stock if such person or entity has acquired such NAC Merger Shares or
shares of Common Stock in violation of the Standstill Agreement or in violation
of any other contract or other agreement binding upon any direct or indirect
donor, assignor or other transferee of such NAC Merger Shares or shares of
Common Stock.
1.3 "REGISTRATION EXPENSES" shall mean all expenses incurred by NAC in
complying with SECTION 2.1 OR 2.2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for NAC, fees and expenses of independent public accountants of NAC,
blue sky fees and expenses and the expense of any special audits incident to or
required by any such registration (but excluding the compensation of regular
employees of NAC, which shall be paid in any event by NAC).
1.4 "REGISTRABLE SECURITIES" means, collectively, (a) the shares of Common
Stock issued to the Shareholders pursuant to Section 1.5 of the Merger
Agreement, (b) the shares of Common Stock issuable or issued in lieu of any cash
payment due upon the redemption of any shares of Preferred Stock and (c) any
additional securities issued to the Holders prior to the effective date of the
registration statement referred to below with respect to the foregoing upon or
on account of any stock split, stock dividend, recapitalization, dilution
adjustment or similar event.
1.5 "SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder by the SEC.
1.6 "SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale or resale of any of the Registrable
Securities.
1.7 "SEC" or "COMMISSION" means the Securities and Exchange Commission.
1.8 All other capitalized terms used herein and defined in the Merger
Agreement are used herein with the respective meanings ascribed to them in the
Merger Agreement, unless the context herein otherwise requires.
2. REGISTRATION RIGHTS
2.1 REGISTRATION STATEMENT.
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(a) Following the Closing, NAC shall prepare and file with the SEC one or
more registration statements to register for resale by the Holders of the
Registrable Securities in accordance with the following:
(i) Within 120 days following the Closing, NAC shall file a
registration statement (on such form as shall, in the opinion of
counsel to NAC, be appropriate for such filing) covering the
Registrable Securities that are neither Forfeitable Shares nor
issuable in lieu of any cash payment due upon the redemption of any
Forfeitable Shares; provided, however, that, if the same is
permissible under the Securities Act, such registration statement
shall cover all of the Registrable Securities.
(ii) Within 90 days following the date that some or all of the
Forfeitable Shares become non-forfeitable in accordance with the
Merger Agreement, NAC shall file a registration statement (on such
form as shall, in the opinion of counsel to NAC, be appropriate for
such filing) covering those of the Registrable Securities that are
issuable in lieu of any cash payment due upon the redemption of those
Forfeitable Shares that have become non-forfeitable; provided,
however, that NAC shall not be obligated to file a registration
statement with respect to any of Registrable Securities that have been
covered by the registration statement referred to in clause (i) above.
(b) After filing, NAC shall diligently use commercially reasonable efforts
to cause the respective registration statement (and/or file a new registration
statement) to become and remain effective until the earlier of (i) the date as
of which all of the Registrable Securities covered thereby have been resold by
the Holders holding the same or (ii) until the Holders are free to resell all of
the Registrable Securities covered thereunder pursuant to Rule 144(k).
2.2 PIGGY-BACK REGISTRATION RIGHTS.
(a) If following the Closing NAC engages an underwriter to undertake a
firm commitment underwritten public offering of any capital stock of NAC, then,
at least twenty (20) days prior to the date of the filing by NAC of the
registration statement with respect to such offering, NAC shall give written
notice of such proposed public offering to each of the Holders. In the event any
such Holder shall desire to sell or resell any of its/his/her Registrable
Securities (exclusive of any portion thereof that are issuable in lieu of any
cash payment due upon the redemption of any Forfeitable Shares that have not
become non-forfeitable pursuant to the terms of the Merger Agreement) as part of
or in conjunction with such public offering, such Holder shall, within ten (10)
days of its/his/her receipt of such notice from NAC, give written notice of such
desire to NAC, which notice shall specify (a) the number of Registrable
Securities such Holder desires to sell or resell as part of or in conjunction
with such public offering, (b) the respective portions of such Registrable
Securities that are comprised of (i) shares of Common Stock that have been
issued pursuant to Section 1.5 of the Merger Agreement, (ii) shares of Common
Stock that have been issued in lieu of any cash payment due upon
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the redemption of any shares of Series B Preferred Stock, (iii) shares of Common
Stock that has been issued in lieu of any cash payment due upon the redemption
of any shares of Series C Preferred Stock, (iv) shares of Common Stock that are
issuable in lieu of any cash payment due upon the redemption of any shares of
Series B Preferred Stock, and (v) shares of Common Stock that are issuable in
lieu of any cash payment due upon the redemption of any shares of Series C
Preferred Stock, and (c) the intended method of disposition of the Registrable
Securities desired to be sold or resold. Except to the extent the managing or
lead underwriter for such public offering objects to the same, NAC shall,
subject to the conditions set forth below, include in such registration
statement all of the Registrable Securities with respect to which NAC has
received a proper and timely notice from the relevant Holder as contemplated
above. In the event the managing or lead underwriter for such public offering
objects to the inclusion in such registration statement of some, but not all, of
the Registrable Securities with respect to which NAC has received proper and
timely notices from the relevant Holders as contemplated above, no such Holder
shall be entitled to have included in such registration statement more than
its/his/her Allocable Fraction of the total number of Registrable Securities
that such managing or lead underwriter will permit to be included in such
registration statement, where the "ALLOCABLE FRACTION" for any such Holder means
a fraction the numerator of which is the number of Registrable Securities that
are then held by such Holder and the denominator of which is the total number of
Registrable Securities that (a) are then held by all Holders who have, as
contemplated above, given proper and timely notices of their desires to have
some or all of their Registrable Securities sold or resold as part of or in
conjunction with such public offering and (b) are not then Forfeitable Shares
that have not become non-forfeitable pursuant to the terms of the Merger
Agreement. The Holders acknowledge and agree that (I) NAC may hereafter grant
piggy-back registration rights to other holders of securities of NAC , and (II)
in such event, if the managing or lead underwriter for such public offering
objects to the inclusion in the registration statement of some, but not all, of
the securities that the Holders and such other holders desire to have included
in such registration statement, such managing or lead underwriter shall include
in such public offering only such securities (in addition to those being offered
by NAC) as such managing or lead underwriter, in its sole and absolute
discretion, shall deem appropriate, and shall be entitled, in its sole and
absolute discretion, to apportion those securities to, and between or among, the
Holders and such other holders in such amount(s) or portion(s) as such managing
or lead underwriter, in its sole and absolute discretion, shall deem appropriate
and each Holder shall be entitled to have included in such registration
statement only up to his/her/its Allocable Fraction of such amount or portion as
has been allocated or apportioned by such managing or lead underwriter to the
Holders.
(b) In the event any Holder elects, as contemplated by clause (a) above,
to have any of its/his/her Registrable Securities included for sale or resale in
the public offering contemplated thereby, such Holder (I) shall fully and
promptly cooperate with the underwriter(s) for such public offering, which
cooperation shall include, without limitation, the execution and delivery of
such underwriting agreement as such underwriter(s) may request and taking all
such other actions as NAC and/or such underwriter(s) may from time to time
request, which request may include, without
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limitation, an undertaking not to sell or otherwise dispose of any Registrable
Securities for a specified period of time from any time prior to the
effectiveness of the applicable registration statement through up to 180 days
following the effectiveness of the applicable registration statement (provided,
however, that, if the officers, the directors, any principal shareholders or any
other holders whose securities are simultaneously being registered are required
to agree not to sell or otherwise dispose of their shares for a longer period of
time, such Holder shall agree to such longer time as a condition to the
inclusion therein of any securities of such Holder) and (II) shall fully and
promptly cooperate with any reasonable request made by NAC in connection with
the consummation of such public offering, which cooperation shall include,
without limitation, the execution and delivery of such agreements and other
documents as NAC may reasonably request and the taking of all such other actions
as NAC may from time to time reasonably request . The right of any Holder to
have any of its/his/her Registrable Securities included in any registration
statement contemplated by clause (a) above shall be conditioned upon such
Holder's full compliance with this clause (b), and in the absence of such full
compliance any Registrable Securities otherwise included in such registration
statement shall be withdrawn from registration thereunder.
2.3 OBLIGATIONS OF NAC. Whenever required to effect the registration of
any Registrable Securities pursuant to SECTION 2.1 or 2.2 hereof, NAC shall,
within a commercially reasonably time:
(a) Prepare and file with the SEC 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.
(b) Furnish to the Holders such number 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 Registrable Securities owned by them.
(c) Use commercially reasonable 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
Shareholders' Representative; provided that NAC 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.
(d) Notify each Holder holding any Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
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2.4 EXPENSES OF REGISTRATION. NAC shall pay all Registration Expenses,
except that the Holders shall bear all Selling Expenses attributable to their
Registrable Securities being registered and fees of their counsel.
3. INDEMNIFICATION
3.1 To the extent permitted by law, NAC will indemnify and hold harmless
each Holder, the partners, officers and directors of each Holder, and each
person, if any, who controls such Holder against any losses, claims, damages or
liabilities (joint or several) to which it/he/she or 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") by NAC: (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 NAC 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 in connection with
the offering covered by such registration statement; and NAC will pay to each
such Holder, partner, officer, director or controlling person for any legal or
other expenses reasonably incurred by him/her/it in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such a Violation (provided, however,
that, if a party indemnified hereunder shall provide to NAC an undertaking in
form and substance reasonably satisfactory to NAC to the effect that such
indemnified party will refund to NAC all payments made or advanced to such
indemnified party pursuant to this clause (iii) if it is not finally judicially
determined that there has been a Violation with respect to which such
indemnified party is entitled to indemnification hereunder, NAC shall from time
to time, as the same are incurred and subject to receipt of written evidence
that the same have been incurred, advance to such indemnified party funds to
cover such legal and other expenses); provided, however, that the indemnity
agreement contained in this SECTION 3.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the written consent of NAC, which consent shall
not be unreasonably withheld, nor shall NAC 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 (i) a Violation that occurs in reliance upon, and in
conformity with, written information furnished for use in connection with such
registration by, or on behalf of, such Holder, partner, officer, director or
controlling person of such Holder, (ii) such Holder's failure to deliver, at the
time required by the Securities Act, a final or amended prospectus that corrects
any actual or alleged untrue statement or omission contained in any preliminary
prospectus or prior prospectus if such Holder previously has been provided such
final or amended prospectus in accordance with SECTION 2.3 or otherwise, (iii)
any offer or sale, or solicitation of any offer, made by the indemnified party
in any jurisdiction in which the same is not registered or otherwise permitted,
unless such indemnified party has been advised in writing by NAC that such offer
or
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sale, or such solicitation of any offer, is registered or otherwise permitted in
such jurisdiction, or (iv) any other breach or violation by an indemnified party
of the Securities Act, the Exchange Act or other federal or state law, exclusive
of any such breach or violation to the extent the same is the consequence of any
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, or the omission to state therein any
material fact required to be stated therein or necessary to make the statements
stated therein not misleading.
3.2 To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify and hold
harmless NAC, each of its directors and officers and each person, if any, who
controls NAC within the meaning of the Securities Act and any other Holder
selling securities under such registration statement or any of such other
Holder's partners, directors or officers or any person who controls such other
Holder, against any losses, claims, damages or liabilities (joint or several) to
which NAC or any such director, officer, controlling person or other such
Holder, or partner, director, officer or controlling person of such other
Holder, 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, or on
behalf of, such Holder for use in connection with such registration; and each
such Holder will pay any legal or other expenses reasonably incurred by NAC or
any such director, officer, controlling person or other Holder, or partner,
officer, director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such a Violation; provided, however,
that the indemnity agreement contained in this SECTION 3.2 shall not apply to
any Holder with respect to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the written
consent of such Holder, which consent shall not be unreasonably withheld; and
provided, further, however, that in no event shall any indemnity under this
SECTION 3 exceed the net proceeds from the offering received by such Holder.
3.3 Promptly after receipt by an indemnified party under this SECTION 3 of
notice of the commencement of any action (including any governmental action)
with respect to which indemnification under this SECTION 3 may be sought by such
indemnified party, such indemnified party will, if a claim in respect thereof is
to be made against any indemnifying party under this SECTION 3, 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) assume, the defense thereof with counsel selected by the
indemnifying party or parties with the consent of the indemnified party or
parties (which consent shall not be unreasonably withheld or delayed); 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
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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 (provided, however, that under no circumstances shall
any indemnifying party be obligated to pay for more than one counsel
representing any or all of the parties intended to be indemnified hereunder).
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of liability to the indemnified party under this SECTION 3
but only to the extent such failure is materially prejudicial to its ability to
defend such action, 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 3.
3.4 If the indemnification provided for in this SECTION 3 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the indemnifying party, on the one hand, and of the indemnified party, on the
other hand, in connection with the Violation(s) that resulted in such loss,
claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, that in no event shall any contribution by a
Holder hereunder exceed the net proceeds from the offering received by such
Holder.
3.5 The obligations of NAC and the Holders under this SECTION 3 shall
survive completion of any offering of Registrable Securities in a registration
statement and the termination of this Agreement. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
4. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights to cause NAC to register Registrable Securities pursuant to
this Agreement may be assigned by a Holder to a transferee or assignee of
Registrable Securities that (a) is a subsidiary, parent, general partner,
limited partner, retired partner, member or retired member, or director,
officer, employee or owner, of such Holder, or (b) is a member of such Holder's
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immediate family or trust or other entity controlled by or formed for the
benefit of such Holder or members of such Holder's immediate family; provided,
however, that (i) the transferor shall, within ten (10) days after such
transfer, furnish to NAC written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned and (ii) such transferee shall agree, in
writing in form and substance reasonably satisfactory to NAC, to be subject to
all restrictions set forth in this Agreement. Notwithstanding anything contained
herein to the contrary, no such assignment or transfer shall be made by any
Holder, without the prior written consent of NAC (which consent may be withheld
in NAC's sole discretion), during the period in which the Standstill Agreement
shall be in effect unless such assignment or transfer is expressly permitted in
the Standstill Agreement.
5. RULE 144 REPORTING
With a view to making available to the Holders the benefits of certain
rules and regulations of the SEC that may permit the sale of the Registrable
Securities to the public without registration, NAC agrees to use its
commercially reasonable efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act;
(b) File with the SEC, in a timely manner, all reports and other
documents required of NAC under the Exchange Act; and
(c) So long as a Holder owns any Registrable Securities, furnish to
such Holder forthwith upon request: a written statement by NAC as to its
compliance with the reporting requirements of Rule 144 of the Securities Act and
of the Exchange Act; a copy of the most recent annual or quarterly report of
NAC; and such other reports and documents as a Holder may reasonably request in
availing itself of any rule or regulation of the SEC allowing it to sell any
such securities without registration.
6. MISCELLANEOUS
6.1 NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part of any
party to this Agreement in exercising any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
6.2 AMENDMENTS AND WAIVERS. Except as hereinafter provided, amendments to
this Agreement shall require and shall be effective upon receipt of the written
consent of NAC and of either the Majority Holders (as hereinafter defined) or
the Shareholders' Representative, who is hereby expressly granted the right on
behalf of all of the Shareholders (and their heirs, administrators, legal
representatives, successors and assigns) to amend and/or supplement this
Agreement. Except as hereinafter provided, compliance with any covenant or
provision set forth herein may be waived upon written
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consent by the party or parties whose rights are being waived; provided, that,
the rights of holders of Registrable Securities can be waived only upon the
written consent of the Majority Holders or the Shareholders' Representative. Any
waiver or amendment may be given subject to satisfaction of conditions stated
therein, and any waiver or amendment shall be effective only in the specific
instance(s) and for the specific purpose(s) for which given. As used herein,
"MAJORITY HOLDERS" means any Holder or group of Holders who or that,
individually or in the aggregate, at the relevant time own of record a majority
of the outstanding Registrable Securities (whether or not then subject to
forfeiture, but exclusive of any thereof that, under the terms of the Merger
Agreement, have been forfeited) then owned of record by all Holders, it being
agreed and understood that, for the purposes of determining whether any Holder
or group of Holders own of record a majority of the outstanding Registrable
Securities, each Holder will be deemed to hold, in addition to those shares of
Common Stock that are then held of record by such Holder and that were issued
either (i) pursuant to Section 1.5 of the Merger Agreement or (ii) in lieu of
any cash payment due upon the redemption of any shares of Preferred Stock, the
shares of Common Stock that are issuable in lieu of any cash payment due upon
the redemption of those outstanding shares of Preferred Stock then held of
record by such Holder.
6.3 NOTICES.
As the terms "notice" or "notices" are used herein as between the parties,
such term shall mean a written document, explaining the reason for the notice,
and the same shall be mailed by United States Postal Service Via Certified Mail,
Return Receipt Requested, or by recognized overnight courier service, addressed
as follows:
If to NAC:
National Auto Credit, Inc.
00000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
Attn: Chief Executive Officer
Fax: _________
with a copy to:
Parker, Duryee, Xxxxxx & Xxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
If to the Holders or any of them:
Xxxxxx X. Xxxxxx, XX
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Verde Reinsurance Company, Ltd.
0000 Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esquire
Xxxxx & Xxxxxx, LLP
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Such notice shall be deemed to have been given on the date placed in the U.S.
Mails or delivered to the overnight courier service, whether actually received
by the addressee or not, and shall be deemed received by the addressee, whether
actually received by the addressee or not, on the third business day after being
so mailed or the next business day after being sent by overnight courier
service. The parties may from time to time amend the above addresses and names
by written notice given to the other party; provided, however, that any notice
contemplated by SECTION 2.2 above to be sent to any Holder shall be sent to such
Holder at its/his/her address as reflected on the books of NAC.
6.4 TERMINATION. This Agreement shall terminate with respect to any holder
of Registrable Securities on the earlier of the date that all of such holder's
Registrable Securities (a) have been sold pursuant to a registration statement
under the Securities Act or have been otherwise sold or disposed of otherwise
than to a transferee as contemplated by SECTION 4 hereof or (b) may immediately
be sold by such holder pursuant to Rule 144 under the Securities Act during any
90-day period; provided, however, that this Agreement shall not terminate if any
shares are subject to any then-effective registration rights pursuant to SECTION
2 hereof unless such shares have been sold or resold under an effective
registration statement.
6.5 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and
be enforceable against the parties hereto and their respective heirs,
administrators, legal representatives, successors and assigns and shall inure to
the benefit of and be enforceable by the parties hereto and their respective
heirs, administrators, legal representatives, successors and permitted assigns,
except that (a) NAC shall not have the right to delegate its obligations
hereunder or to assign its rights hereunder and (b) no such assignment shall be
made by any Shareholder (or any heir, administrator, legal representative,
successor or assign of any Shareholder), without the prior written consent of
NAC (which consent may be withheld in NAC's sole discretion), during the period
in which and the Standstill Agreement shall be in effect unless such assignment
is expressly permitted in the Standstill Agreement.
6.6 PRIOR AGREEMENTS. This Agreement constitutes the entire agreement
between and among the parties with respect to the subject matter hereof and
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supersedes any prior or contemporaneous understandings or agreements (written or
oral) concerning the subject matter hereof, except for those agreements and
understandings contained in the Merger Agreement and the other agreements,
documents and instruments contemplated thereby and hereby.
6.7 SEVERABILITY. The provisions of this Agreement are severable, and in
the event that any court of competent jurisdiction shall determine that any one
or more of the provisions or part of a provision contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed as if such invalid, illegal or unenforceable
provision, or part of a provision, had never been contained herein, and such
provision or part shall be reformed so that it would be valid, legal and
enforceable to the maximum extent possible.
6.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Delaware applicable to
contracts executed and to be performed wholly within that State, without giving
effect to the choice or conflict of laws provisions or principles thereof.
6.9 WAIVER OF JURY TRIAL. Each of the parties hereto expressly waives its
right to a jury trial with respect to any such suit, litigation or other
judicial proceeding.
6.10 HEADINGS; INTERPRETATION. Article, section and subsection headings in
this Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose. This Agreement is
the product of mutual negotiation; therefore, no party shall be deemed the
draftsperson hereof.
6.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
6.12 FURTHER ASSURANCES. From and after the date of this Agreement, upon
the request of any party hereto, the other parties shall execute and deliver
such instruments, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out, and to effectuate fully, the intent and
purposes of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the day and year first above written.
NATIONAL AUTO CREDIT, INC. VERDE REINSURANCE COMPANY, LTD.
By: By:
-------------------------------- -------------------------------
Its: Its:
------------------------------- ------------------------------
XXXXX XXXXXX III 2000 TRUST XXXXX XXXXXX 2000 TRUST
By: By:
-------------------------------- -------------------------------
Its: Its:
------------------------------- ------------------------------
----------------------------------- ----------------------------------
XXXXXX X. XXXXXX XXX XXXXX
----------------------------------- ----------------------------------
XXXXXX XXXXXXX XXXX XXXXXX
EJMS INVESTORS LIMITED PARTNERSHIP
By: SJME Investors, LLC, an
Arizona limited liability company,
its General Partner ----------------------------------
XXXXX XXXXXXXXX
By:
--------------------------------
Its:
-------------------------------
----------------------------------- ----------------------------------
XXXXX XXXXXXX XXXXX XXXXXXX
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----------------------------------- ----------------------------------
XXXX XXXXXX XXXXX XXXXXX
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