BANC OF AMERICA SECURITIES LLC
$150,000,000 AGGREGATE PRINCIPAL AMOUNT
FINANCIAL FEDERAL CORPORATION
2% CONVERTIBLE SENIOR DEBENTURES DUE 2034
Registration Rights Agreement
dated April 12, 2004
REGISTRATION RIGHTS AGREEMENT, dated April 12,
2004, between Financial Federal Corporation, a Nevada
corporation (together with any successor entity, herein
referred to as the "Company") and Banc of America
Securities LLC and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as
representatives (the "Representatives") of the several
initial purchasers (the "Initial Purchasers"), under
the Purchase Agreement (as defined below).
Pursuant to the Purchase Agreement, dated April 5,
2004, between the Company and the Representatives (the
"Purchase Agreement"), the Initial Purchasers have
agreed to purchase from the Company $150,000,000
($175,000,000 if the Initial Purchasers exercise their
option in full) aggregate principal amount of 2%
Convertible Senior Debentures Due 2034 (the
"Debentures"). The Debentures will be convertible into
fully paid, nonassessable shares of the Company's
common stock, par value $0.50 per share (the "Common
Stock"). The Debentures will be convertible on the
terms, and subject to the conditions, set forth therein
and in the Indenture (as defined herein). To induce
the Initial Purchasers to purchase the Debentures, the
Company has agreed to provide the registration rights
set forth in this Agreement pursuant to Section 5(g) of
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this
Agreement without definition shall have their
respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"Affiliate" of any specified person means any
other person which, directly or indirectly, is in
control of, is controlled by, or is under common
control with, such specified person. For purposes of
this definition, control of a person means the power,
direct or indirect, to direct or cause the direction of
the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the
foregoing.
"Agreement" means this Registration Rights
Agreement.
"Blue Sky Application" has the meaning set forth
in Section 6(a)(i) hereof.
"Business Day" has the meaning set forth in the
Indenture.
"Commission" means the Securities and Exchange
Commission.
"Common Stock" has the meaning set forth in the
preamble hereto.
"Company" has the meaning set forth in the
preamble hereto.
"Debentures" has the meaning set forth in the
preamble hereto.
"Effectiveness Period" has the meaning set forth
in Section 2(a)(iii) hereof.
"Effectiveness Target Date" has the meaning set
forth in Section 2(a)(ii) hereof.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Holder" means any Person who owns, beneficially
or otherwise, Transfer Restricted Securities, provided
that, for the purpose of the notice provided by the
Company pursuant to Section 2(b) of this Agreement,
"Holder" shall be limited to The Depository Trust
Company.
"Indemnified Holder" has the meaning set forth in
Section 6(a) hereof.
"Indenture" means the Indenture, dated as of April
12, 2004 between the Company and Deutsche Bank Trust
Company Americas, as trustee (the "Trustee"), pursuant
to which the Debentures are to be issued, as such
Indenture is amended, modified or supplemented from
time to time in accordance with the terms thereof.
"Initial Purchasers" has the meaning set forth in
the preamble hereto.
"Liquidated Damages" has the meaning set forth in
Section 3(a) hereof.
"Liquidated Damages Payment Date" means each April
15 and October 15.
"Majority of Holders" means Holders holding over
50% of the aggregate principal amount of Debentures
outstanding; provided that, for the purpose of this
definition, a holder of shares of Common Stock which
constitute Transfer Restricted Securities and issued
upon conversion of the Debentures shall be deemed to
hold an aggregate principal amount at maturity of
Debentures (in addition to the principal amount at
maturity of Debentures held by such holder) equal to
the quotient of (x) the number of such shares of Common
Stock held by such holder and (y) the conversion rate
in effect at the time of such conversion as determined
in accordance with the Indenture.
"NASD" means the National Association of
Securities Dealers, Inc.
"Notice and Questionnaire" means a written notice
executed by the respective Holder and delivered to the
Company containing substantially the information called
for by the Form of Selling Securityholder Notice and
Questionnaire attached as Appendix A to the Offering
Memorandum of the Company dated April 5, 2004 relating
to the Debentures.
"Notice Holder" has the meaning set forth in
Section 2(b) hereof.
"Person" means any individual, partnership,
corporation, company, unincorporated organization,
trust, joint venture or a government or agency or
political subdivision thereof.
"Purchase Agreement" has the meaning set forth in
the preamble hereto.
"Prospectus" means the prospectus included in a
Shelf Registration Statement, as amended or
supplemented by any prospectus supplement and all other
amendments thereto, including post-effective
amendments.
"Record Holder" means, with respect to any
Liquidated Damages Payment Date, each Person who is a
Holder on the April 1 or October 1 preceding the
relevant Liquidated Damages Payment Date.
"Registration Default" has the meaning set forth
in Section 3(a) hereof.
"Securities Act" means the Securities Act of 1933,
as amended.
"Shelf Filing Deadline" has the meaning set forth
in Section 2(a)(i) hereof.
"Shelf Registration Statement" has the meaning set
forth in Section 2(a)(i) hereof.
"Subsequent Shelf Registration Statement" has the
meaning set forth in Section 2(c) hereof.
"Suspension Notice" has the meaning set forth in
Section 4(c) hereof.
"Suspension Period" has the meaning set forth in
Section 4(b)(i) hereof.
"TIA" means the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the
Commission thereunder, in each case, as in effect on
the date the Indenture is qualified under the TIA.
"Transfer Restricted Securities" means each
Debenture and each share of Common Stock issued upon
conversion of Debentures until the earlier of:
(i) the date on which such Debenture or such share of
Common Stock issued upon conversion of such Debenture
has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf
Registration Statement;
(ii) the date on which such Debenture or such share of
Common Stock issued upon conversion of such Debenture
is transferred in compliance with Rule 144 under the
Securities Act or may be sold or transferred by a
person who is not an affiliate of the Company pursuant
to Rule 144(k) under the Securities Act (or any other
similar provision then in force); or
(iii) the date on which such Debenture or such
share of Common Stock issued upon conversion of such
Debenture ceases to be outstanding (whether as a result
of redemption, repurchase and cancellation, conversion
or otherwise).
"Underwritten Registration" means a registration
in which Debentures of the Company are sold to an
underwriter for reoffering to the public.
Unless the context otherwise requires, the
singular includes the plural, and words in the plural
include the singular.
2. Shelf Registration.
(a) The Company shall:
(i) not later than 90 days after the date hereof (the
"Shelf Filing Deadline"), cause to be filed a
registration statement pursuant to Rule 415 under the
Securities Act (the "Shelf Registration Statement"),
which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities held by
Holders that have provided the information required
pursuant to the terms of Section 2(b) hereof;
(ii) use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the
Commission not later than 210 days after the date
hereof (the "Effectiveness Target Date"); and
(iii) use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions
of Section 4(b) hereof to the extent necessary to
ensure that (A) it is available for resales by the
Holders of Transfer Restricted Securities entitled,
pursuant to Section 2(b) and Section 2(e) hereof, to
the benefit of this Agreement and (B) conforms with the
requirements of this Agreement and the Securities Act
and the rules and regulations of the Commission
promulgated thereunder as announced from time to time,
for a period (the "Effectiveness Period") beginning on
the date the Registration Statement is declared
effective by the Commission and ending on the earliest
to occur of:
(1) the date when all of the Transfer Restricted
Securities are disposed of pursuant to Rule 144 under
the Securities Act (or any other similar provision then
in effect);
(2) the date when all Holders of Transfer Restricted
Securities who are not affiliates of the Company are
able to sell all such Transfer Restricted Securities
immediately pursuant to Rule 144(k) under the
Securities Act (or any other similar provision then in
effect); or
(3) the date when all of the Transfer Restricted
Securities of those Holders that complete and deliver
the Notice and Questionnaire in a timely manner are
registered under the Shelf Registration Statement and
disposed of in accordance with the Shelf Registration
Statement.
(b) The Company shall furnish a written notice to each
Holder of the Transfer Restricted Securities at least
15 days before filing the Shelf Registration Statement
and inform each Holder that to have its Transfer
Restricted Securities included in the Shelf
Registration Statement it must deliver a completed
Notice and Questionnaire to the Company. At the time
the Shelf Registration Statement is declared effective,
each Holder that has delivered a completed Notice and
Questionnaire to the Company (a "Notice Holder") on or
prior to the date five (5) Business Days prior to such
time of effectiveness shall be named as a selling
securityholder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of
Transfer Restricted Securities in accordance with
applicable law. None of the Company's securityholders
(other than the Holders of Transfer Restricted
Securities) shall have the right to include any of the
Company's securities (other than the Transfer
Restricted Securities) in the Shelf Registration
Statement.
(c) If the Shelf Registration Statement or any
Subsequent Shelf Registration Statement (as defined
below) ceases to be effective or fails to be usable for
any reason at any time during the Effectiveness Period
(other than because all Transfer Restricted Securities
registered thereunder shall have been resold pursuant
thereto or shall have otherwise ceased to be Transfer
Restricted Securities), the Company shall use its
reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness thereof, and, to the
extent necessary, amend the Shelf Registration
Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration
Statement covering all of the securities that as of the
date of such filing are Transfer Restricted Securities
( a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the
Company shall use its reasonable best efforts to cause
the Subsequent Shelf Registration Statement to become
effective and to keep such Registration Statement (or
subsequent Shelf Registration Statement) continuously
effective until the end of the Effectiveness Period.
(d) The Company shall supplement and amend the Shelf
Registration Statement if required by the rules,
regulations or instructions applicable to the
registration form used by the Company for such Shelf
Registration Statement, if required by the Securities
Act or as reasonably requested by the Trustee.
(e) Each Holder agrees that if such Holder wishes to
sell Transfer Restricted Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will
do so only in accordance with this Section 2(e), and
the procedures set forth in Section 4 hereof. Each
Holder wishing to sell Transfer Restricted Securities
pursuant to a Shelf Registration Statement and related
Prospectus agrees to deliver a Notice and Questionnaire
to the Company at least three (3) Business Days prior
to any intended distribution of Transfer Restricted
Securities under the Shelf Registration Statement.
From and after the date the Shelf Registration
Statement is declared effective the Company shall, upon
the later of (x) fifteen (15) Business Days after the
date it receives a Notice and Questionnaire (but no
earlier than fifteen (15) Business Days after
effectiveness) or (y) fifteen (15) Business Days after
the expiration of any Suspension Period in effect when
the Notice and Questionnaire is delivered or put into
effect within fifteen (15) Business Days of such
delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration
Statement or prepare and, if required by applicable
law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated
therein by reference or file any other required
document so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in
the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Transfer
Restricted Securities in accordance with applicable law
and, if the Company shall file a post-effective
amendment to the Shelf Registration Statement, use its
reasonable best efforts to cause such post-effective
amendment to be declared effective under the Securities
Act; and
(ii) notify such Holder as promptly as practicable
after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section
2(e)(i);
provided that if such Notice and Questionnaire is
delivered during a Suspension Period, the Company shall
so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in
clauses (i) and (ii) above upon expiration of the
Suspension Period in accordance with Section 4(b).
Notwithstanding anything contained herein to the
contrary, the Company shall be under no obligation to
name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or
related Prospectus.
3. Liquidated Damages.
(a) If:
(i) the Shelf Registration Statement is not filed with
the Commission prior to or on the Shelf Filing
Deadline;
(ii) the Shelf Registration Statement has not been
declared effective by the Commission prior to or on the
Effectiveness Target Date;
(iii) except as provided in Section 4(b)(i) hereof,
the Shelf Registration Statement is filed and declared
effective but, during the Effectiveness Period, shall
thereafter cease to be effective or fail to be usable
for its intended purpose and such Shelf Registration
Statement is not succeeded within ten Business Days (or
if a Suspension Period is then in effect, the fifth
business day following the expiration of such
Suspension Period) by a post-effective amendment to the
Shelf Registration Statement, a supplement to the
Prospectus or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act that cures such failure and, in the case
of a post-effective amendment, is itself immediately
declared effective;
(iv) if applicable, the Company does not terminate any
Suspension period by the 45th or 60th consecutive day,
as the case may be, pursuant to Section 4(b)(i) hereof;
or
(v) if Suspension Periods exceed an aggregate of 90
days in any 360-day period,
(each such event referred to in foregoing clauses (i)
through (v), a "Registration Default"), a Registration
Default occurs, other than a Registration Default
relating to a failure to file or have an effective
Shelf Registration Statement with respect to shares of
Common Stock issuable upon conversion of the Debentures
that are Transfer Restricted Securities, the Company
hereby agrees to pay interest ("Liquidated Damages")
with respect to Debentures that are Transfer Restricted
Securities from and including the day following the
Registration Default to but excluding the earlier of
(1) the day on which the Registration Default has been
cured and (2) the date the Shelf Registration Statement
is no longer required to be kept effective, accruing at
a rate equal to:
(A) 0.25% per annum of the aggregate principal amount
of a Debenture to and including the 90th day following
such Registration Default; and
(B) 0.50% per annum of the aggregate principal amount
of a Debenture from and after the 91st day following
such Registration Default;
provided, that in no event shall Liquidated Damages
accrue at a rate per year exceeding 0.50% of the
aggregate principal amount of a Debenture.
(b) All accrued Liquidated Damages shall be paid
semiannually in arrears to Record Holders by the
Company on each Liquidated Damages Payment Date
commencing on the first Liquidated Damages Payment Date
following a Registration Default in accordance with the
Indenture. Upon the cure of all Registration Defaults
relating to any particular Debenture, the accrual of
Liquidated Damages with respect to such Debenture will
cease.
All accrued Liquidated Damages with respect to any
Debenture that is a Transfer Restricted Security that
have not been paid by the Company at the time such
Debenture ceases to be a Transfer Restricted Security
shall be payable on the next Liquidated Damages Payment
Date.
The Liquidated Damages set forth above shall be
the exclusive monetary remedy available to the Holders
of Transfer Restricted Securities for each Registration
Default.
4. Registration Procedures.
(a) In connection with the Shelf Registration
Statement, the Company shall comply with all the
provisions of Section 4(b) hereof and shall use its
reasonable best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities,
and pursuant thereto, shall prepare and file with the
Commission a Shelf Registration Statement relating to
the registration on any appropriate form under the
Securities Act.
(b) In connection with the Shelf Registration
Statement and any Prospectus required by this Agreement
to permit the sale or resale of Transfer Restricted
Securities, 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),
use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective during
the Effectiveness Period; upon the occurrence of any
event that would cause the Shelf Registration Statement
or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted
Securities during the Effectiveness Period, the Company
shall file an appropriate amendment to the Shelf
Registration Statement, a supplement to the Prospectus
or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act,
in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either
clause (A) or (B), use its reasonable best efforts to
cause such amendment to be declared effective and the
Shelf Registration Statement and the related Prospectus
to become usable for their intended purposes.
Notwithstanding the foregoing, the Company may suspend
the use of the Shelf Registration Statement by written
notice to the Holders for a period not to exceed 45
consecutive days and not to exceed an aggregate of 90
days in any 360-day period (each such period, including
any extensions thereof pursuant to Section 4(b)(i)
hereof, a "Suspension Period") if:
(x) an event occurs and is
continuing as a result of which the Shelf
Registration Statement, the Prospectus, any
amendment or supplement thereto, or any
document incorporated by reference therein
would, in the Company's judgment, contain an
untrue statement of a material fact or omit
to state a material fact required to be
stated therein or necessary to make the
statements therein not misleading; and
(y) the Company determines in good
faith that the disclosure of such event at
such time would be detrimental to the
Company and its subsidiaries.
Notwithstanding the foregoing, if the disclosure
relates to a previously undisclosed proposed or
pending material business transaction, the
disclosure of which the Company determines in good
faith would be reasonably likely to impede its
ability to consummate such transaction, the
Company may extend a Suspension Period from 45 to
60 days. Holders hereby agree to hold any
communications in response to a notice of a
proposed business transaction in confidence.
The Company shall not be required to specify in
the written notice to the Holders the nature of
the event giving rise to the Suspension Period.
(ii) Prepare and file with the Commission such
amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the
Shelf Registration Statement effective during the
Effectiveness Period; cause the Prospectus to be
supplemented by any required Prospectus supplement, and
as so supplemented 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 Transfer Restricted Securities
covered by the Shelf Registration Statement during the
applicable period in accordance with the intended
method or methods of distribution by the sellers
thereof set forth in the Shelf Registration Statement
or supplement to the Prospectus.
(iii) Advise each Holder named in the Registration
Statement promptly upon obtaining knowledge thereof
and, if requested by such Holders, to confirm such
advice in writing (subject to Section 4(c)):
(A) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with
respect to the Shelf 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 Shelf 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 Shelf
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 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, during the Effectiveness Period, that makes
any statement of a material fact made in the Shelf
Registration Statement, the Prospectus, any amendment
or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making
of any additions to or changes in the Shelf
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 Shelf
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
Restricted Securities under state securities or
Blue Sky laws, the Company shall use its
reasonable best efforts to obtain the withdrawal
or lifting of such order and will provide to each
Holder who is named in the Shelf Registration
Statement prompt notice of the withdrawal of any
such order.
(iv) Make available at reasonable times for inspection
by one or more representatives of the selling Holders,
designated in writing by a Majority of Holders whose
Transfer Restricted Securities are included in the
Shelf Registration Statement, and any attorney or
accountant retained by such selling Holders, all
financial and other records, pertinent corporate
documents and properties of the Company as shall be
reasonably necessary to enable them to conduct a
reasonable investigation within the meaning of Section
11 of the Securities Act, and cause the Company's
officers, directors, managers and employees to supply
all information reasonably requested by any such
representative or representatives of the selling
Holders, attorney or accountant in connection
therewith; provided, however, that the Company shall
have no obligation to deliver information to any
selling Holder or representative pursuant to this
Section 4(b)(iv) unless such selling Holder or
representative shall have executed and delivered a
confidentiality agreement in a form acceptable to the
Company relating to such information.
(v) If requested by any selling Holders, promptly
incorporate in the Shelf 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
in the information relating to the "Plan of
Distribution" of the Transfer Restricted Securities.
(vi) Deliver to each selling Holder, without charge, as
many copies of the Prospectus (including each
preliminary Prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; subject
to delivery and continuing effectiveness of any
Suspension Notice delivered pursuant to Section 4(c),
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 covered by the Prospectus or any amendment
or supplement thereto.
(vii) Before any public offering of Transfer
Restricted Securities, cooperate with the selling
Holders and their counsel in connection with the
registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky
laws of such jurisdictions in the United States as the
selling Holders may reasonably request and do any and
all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that the
Company shall not be required (A) to register or
qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take
any action that would subject it to the service of
process in any jurisdiction where it is not now so
subject or (B) to subject itself to general or
unlimited service of process or to taxation in any such
jurisdiction if they are not now so subject.
(viii) Cooperate with the selling Holders to
facilitate the timely preparation and delivery of
certificates representing Transfer Restricted
Securities, if such certificates are issued pursuant to
the Indenture, to be sold and not bearing any
restrictive legends (unless required by applicable
securities laws); and enable such Transfer Restricted
Securities to be in such denominations and registered
in such names as the Holders may request at least two
Business Days before any sale of Transfer Restricted
Securities.
(ix) Use its reasonable best efforts to cause the
Transfer Restricted Securities covered by the Shelf
Registration Statement to be registered with or
approved by such other U.S. governmental agencies or
authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such
Transfer Restricted Securities, if such registration or
approval is reasonably acceptable to the Company, in
its sole discretion.
(x) Subject to Section 4(b)(i) hereof, if any fact or
event contemplated by Section 4(b)(iii)(D) hereof shall
exist or have occurred, use its reasonable best efforts
to prepare a supplement or post-effective amendment to
the Shelf 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 will not contain an untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances in which they are made, not
misleading.
(xi) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the
Shelf Registration Statement and provide the Trustee
under the Indenture with certificates for the
Debentures that are in a form eligible for deposit with
The Depository Trust Company.
(xii) Cooperate and assist in any filings required
to be made with the NASD and in the performance of any
due diligence investigation by any underwriter that is
required to be retained in accordance with the rules
and regulations of the NASD.
(xiii) Cause the Indenture to be qualified under the
TIA not later than the effective date of the Shelf
Registration Statement required by this Agreement, and,
in connection therewith, cooperate with the Trustee and
the holders of Debentures 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 its reasonable best efforts to
cause the Trustee thereunder 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.
(xiv) Cause all Common Stock covered by the Shelf
Registration Statement to be listed or quoted, as the
case may be, on each securities exchange or automated
quotation system on which Common Stock is then listed
or quoted.
(xv) Provide to each Holder upon written request each
document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the
Exchange Act after the effective date of the Shelf
Registration Statement, unless such document is
available through the Commission's ▇▇▇▇▇ system.
(c) Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice (a
"Suspension Notice") from the Company of the existence
of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted
Securities pursuant to the Shelf Registration Statement
until:
(i) such Holder has received copies of the
supplemented or amended Prospectus contemplated by
Section 4(b)(xi) hereof; or
(ii) such Holder is advised in writing by the Company
that the use of the Prospectus may be resumed.
If so directed by the Company, each Holder will deliver
to the Company (at the Company's expense) 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 of suspension.
(d) Each Holder agrees by acquisition of the Transfer
Restricted Securities, that no Holder shall be entitled
to sell any of such Transfer Restricted Securities
pursuant to a Registration Statement, or to receive a
Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire
as required pursuant to Section 2(e) hereof (including
the information required to be included in such Notice
and Questionnaire) and the information set forth in the
next sentence. Each Notice Holder agrees promptly to
furnish to the Company all information required to be
disclosed in order to make the information previously
furnished to the Company by such Notice Holder not
misleading and any other information regarding such
Notice Holder and the distribution of such Transfer
Restricted Securities as the Company may from time to
time reasonably request in writing. Any sale of any
Transfer Restricted Securities by any Holder shall
constitute a representation and warranty by such Holder
that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus
delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a
material fact relating to or provided by such Holder to
its plan of distribution and that such Prospectus does
not as of the time of such sale omit to state any
material fact relating to or provided by such Holder or
its plan of distribution necessary to make the
statements in such Prospectus, in the light of the
circumstances under which they were made not
misleading.
5. Registration Expenses.
(a) All expenses incident to the Company's performance
of or compliance with this Agreement shall be borne by
the Company regardless of whether a Shelf Registration
Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses
(including filings made with the NASD);
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing
of Prospectuses and certificates for the Common Stock
to be issued upon conversion of the Debentures) and the
Company's expenses for messenger and delivery services
and telephone;
(iv) all fees and disbursements of counsel to the
Company;
(v) all application and filing fees in connection with
listing (or authorizing for quotation) the Common Stock
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.
The Company shall bear its internal expenses
(including, without limitation, all salaries and
expenses of their officers and employees performing
legal, accounting or other duties), the expenses of any
annual audit and the fees and expenses of any Person,
including special experts, retained by the Company.
(b) All fees and expenses of the Notice Holders,
including fees and expenses of counsel, shall be borne
by the Notice Holders.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Holder of Transfer Restricted Securities by the
Shelf Registration Statement (including each Initial
Purchaser), its directors, officers, and employees and
each person, if any, who controls any such Holder
within the meaning of the Securities Act or the
Exchange Act (each, an "Indemnified Holder"), against
any loss, claim, damage, liability or expense, joint or
several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability
or action relating to resales of the Transfer
Restricted Securities), to which such Indemnified
Holder may become subject, insofar as any such loss,
claim, damage, liability, expense or action arises out
of, or is based upon:
(i) any untrue statement or alleged untrue statement
of a material fact contained in (A) the Shelf
Registration Statement as originally filed or in any
amendment thereof, in any Prospectus, or in any
amendment or supplement thereto or (B) any blue sky
application or other document or any amendment or
supplement thereto prepared or executed by the Company
(or based upon written information furnished by or on
behalf of the Company expressly for use in such blue
sky application or other document or amendment on
supplement) filed in any jurisdiction specifically for
the purpose of qualifying any or all of the Transfer
Restricted Securities under the securities law of any
state or other jurisdiction (such application or
document being hereinafter called a "Blue Sky
Application"); or
(ii) the omission or alleged omission to state therein
any 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,
and agrees to reimburse each Indemnified Holder
promptly upon demand for any legal or other expenses
reasonably incurred by such Indemnified Holder in
connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that
the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or
expense arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in
conformity with written information furnished to the
Company by or on behalf of such Holder (or its related
Indemnified Holder) specifically for use therein;
provided, further, that the foregoing indemnity
agreement with respect to any prospectus shall not
inure to the benefit of a Holder, or any person
controlling such Holder, who failed to deliver a
prospectus, as then amended or supplemented (so long as
the prospectus and any amendment or supplement thereto
was provided by the Company to the Holder on a timely
basis to permit proper delivery upon confirmation of a
sale), to the person asserting any losses, claims,
damages, liabilities, expenses or judgments caused by
any untrue statement or alleged untrue statement of a
material fact contained in any prospectus, or caused by
any omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, if such material misstatement or omission
or alleged material misstatement or omission was cured
in the prospectus, as so amended or supplemented. The
foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have.
(b) Each Holder, severally and not jointly, agrees to
indemnify and hold harmless the Company, its directors,
officers and employees and each person, if any, who
controls the Company within the meaning of the
Securities Act or the Exchange Act to the same extent
as the foregoing indemnity from the Company to each
such Holder, but only with reference to written
information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing
indemnity, including information relating to the "Plan
of Distribution". This indemnity agreement set forth
in this Section shall be in addition to any liabilities
which any such Holder may otherwise have. In no event
shall any Holder, its directors, officers or any person
who controls such Holder be liable or responsible for
any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities
purchased by it were resold exceeds the amount of any
damages that such Holder, its directors, officers or
any person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party
under this Section 6 of notice of any claim or the
commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6,
notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall
not relieve it from any liability which it may have
under this Section 6 except to the extent it has been
materially prejudiced by such failure and, provided,
further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under
this Section 6. If any such claim or action shall be
brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the
defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying
party to the indemnified party of its election to
assume the defense of such claim or action, the
indemnifying party shall not be liable to the
indemnified party under this Section 6 for any legal or
other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than
reasonable costs of investigation; provided, however,
that the indemnified party shall have the right to
employ a single counsel to represent jointly the
indemnified party and its officers, employees and
controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity
may be sought against the indemnifying party under this
Section 6 if the indemnified party seeking
indemnification shall have been advised by legal
counsel that there may be one or more legal defenses
available to such indemnified party and its respective
officers, employees and controlling persons that are
different from or additional to those available to the
indemnifying party, and in that event, the fees and
expenses reasonably incurred of such separate counsel
shall be paid by the indemnifying party. No
indemnifying party shall:
(i) without the prior written consent of the
indemnified party (which consent shall not be
unreasonably withheld), effect any settlement,
compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could
reasonably have been a party and indemnity was or could
reasonably have been sought hereunder by such
indemnified party, unless such settlement, compromise
or consent (x) includes an unconditional release of
such indemnified party from all liability on claims
that are the subject matter of such action, suit or
proceeding and (y) does not include a statement as to
or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party, or
(ii) be liable for any settlement of any such action
effected without its written consent (which consent
shall not be unreasonably withheld), but if settled
with its written consent or if there be a final
judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any
loss of liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this
Section 6 shall for any reason be unavailable or
insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss,
claim, damage or liability (or action in respect
thereof) referred to therein, each indemnifying party
shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim,
damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect
the relative benefits received by the Company from the
offering and sale of the Transfer Restricted Securities
on the one hand and a Holder with respect to the sale
by such Holder of the Transfer Restricted Securities on
the other, or
(ii) if the allocation provided by Section (6)(d)(i) is
not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative
benefits referred to in Section 6(d)(i) but also the
relative fault of the Company on the one hand and the
Holders on the other in connection with the statements
or omissions or alleged statements or alleged omissions
that resulted in such loss, claim, damage or liability
(or action in respect thereof), as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the
one hand and a Holder on the other with respect to such
offering and such sale shall be deemed to be in the
same proportion as the total net proceeds from the
offering of the Debentures purchased under the Purchase
Agreement (before deducting expenses) received by the
Company, on the one hand, bear to the total proceeds
received by such Holder with respect to its sale of
Transfer Restricted Securities on the other. The
relative fault of the parties shall be determined by
reference to 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 on the one hand or
the Holders on the other, the intent of the parties and
their relative knowledge, access to information and
opportunity to correct or prevent such statement or
omission. The Company and each Holder agree that it
would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were
determined by pro rata allocation or by any other
method of allocation that does not take into account
the equitable considerations referred to in the first
sentence of this paragraph (d).
The amount paid or payable by an indemnified party
as a result of the loss, claim, damage, expense or
liability, or action in respect thereof, referred to
above in this Section 6 shall be deemed to include, for
purposes of this Section 6, any legal or other expenses
reasonably incurred by such indemnified party in
connection with investigating or defending or preparing
to defend any such action or claim.
Notwithstanding the provisions of this Section 6,
no Holder shall be required to contribute any amount in
excess of the amount by which the total price at which
the Transfer Restricted Securities purchased by it were
resold exceeds the amount of any damages which such
Holder has otherwise been required to pay by reason of
any 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 as provided in this Section 6(d) are
several and not joint.
(e) The provisions of this Section 6 shall remain in
full force and effect, regardless of any investigation
made by or on behalf of any Holder or the Company or
any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive the
sale by a Holder of Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company agrees with
each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in
which the Company is not subject to Section 13 or 15(d)
of the Exchange Act, to make available, upon request of
any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any
sale thereof and any prospective purchaser of such
Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
8. No Participation in Underwritten Registrations.
No Holder may participate in any Underwritten
Registration hereunder.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees
that any failure by the Company to comply with its
obligations under Section 2 hereof may result in
material irreparable injury to the Initial Purchasers
or the Holders for which there is no adequate remedy at
law, that it will not be possible to measure damages
for such injuries precisely, and that, in the event of
any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to
specifically enforce the Company's obligations under
Section 2 hereof. The Company further 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 has not,
as of the date hereof, entered into, nor shall it, on
or after the date hereof, 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. In addition, the Company shall not grant to
any of its securityholders (other than the Holders of
Transfer Restricted Securities in such capacity) the
right to include any of its securities in the Shelf
Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities.
(c) Amendments and Waivers. 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 a Majority of Holders.
Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof, with respect to a
matter, which relates exclusively to the rights of
Holders whose securities are being sold pursuant to a
Shelf Registration Statement and does not directly or
indirectly adversely affect the rights of other
Holders, may be given by the Majority Holders,
determined on the basis of Debentures being sold rather
than registered under such Shelf Registration
Statement.
(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), telecopy,
facsimile transmission, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the registrar under the Indenture or the
transfer agent of the Common Stock, as the case may be;
(ii) if to the Company, at its address set forth in the
Purchase Agreement; and
(iii) if to the Initial Purchasers, at the address
of the Representatives set forth in the Purchase
Agreement.
All such notices and communications shall be
deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telecopied; when receipt
acknowledged, if transmitted by facsimile; and on the
next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.
Any party hereto may change the address for
receipt of communications by giving written notice to
the others.
(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. The Company hereby agrees to
extend the benefit of this Agreement to any Holder and
any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
(f) Counterparts. This Agreement may be executed in
two or more counterparts, each one of which shall be an
original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
(g) Debentures Held by the Company or Their
Affiliates. Whenever the consent or approval of
Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer
Restricted Securities held by the Company or its
Affiliates (other than subsequent Holders if such
subsequent Holders are deemed to be Affiliates solely
by reason of their holding of such Debentures) shall
not be counted in determining whether such consent or
approval was given by the Holders of such required
percentage.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the
State of New York.
(j) Severability. If 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 of the remaining provisions contained
herein shall not be affected or impaired thereby, it
being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent
permitted by law.
(k) Entire Agreement. This 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.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
FINANCIAL FEDERAL CORPORATION
By:
Name:
Title:
By:
Name:
Title:
BANC OF AMERICA SECURITIES LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
Acting as Representatives
of the Several Initial
Purchasers named in
the attached Schedule A
BANC OF AMERICA SECURITIES LLC
By:
Name:
Title:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
Name:
Title:
SCHEDULE A
INITIAL PURCHASERS
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Citigroup Global Markets Inc.