REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (this
"Agreement") dated as of April 30, 1997 by and
between The Aegis Consumer Funding Group, Inc.,
a Delaware corporation (the "Company"), and the
Persons named on Schedule 1 as Holders (each, a
"Holder" and collectively, the "Holders").
RECITALS
WHEREAS, pursuant to that certain
Note Purchase Agreement dated as of the date
hereof, by and between the Company and the
Holders (the "Purchase Agreement"), the Holders
have agreed to purchase $21,333,333 aggregate
principal amount of 12% Exchangeable
Subordinated Notes due April 30, 2004 (the
"Notes") from the Company and the Company has
agreed to provide certain rights to the Holders to
cause (i) any shares of Preferred Stock issued upon
exchange of the Notes or upon the exercise of
Warrants to purchase Preferred Stock and (ii) any
shares of Common Stock issued upon redemption of
shares of Preferred Stock or upon exercise of
Warrants to purchase Common Stock to be
registered pursuant to the Securities Act; and
WHEREAS, the parties hereto hereby
desire to set forth the Holders' rights and the
Company's obligations to cause the registration of
the Registrable Securities pursuant to the Securities
Act;
NOW, THEREFORE, in
consideration of the purchase by the Holders of the
Notes pursuant to the Purchase Agreement, and for
other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
Section 1. Definitions and Usage.
As used in this Agreement:
1.1. Definitions.
Agent. "Agent" means the principal
placement agent on an agented placement of
Registrable Securities.
Commission. "Commission" shall mean the
Securities and Exchange Commission.
Common Stock. "Common Stock" shall
mean (i) the common stock, par value $.01 per
share, of the Company, and (ii) shares of capital
stock of the Company issued by the Company in
respect of or in exchange for shares of such
common stock in connection with any stock
dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the
Company generally of shares of such common stock.
Continuously Effective. "Continuously
Effective," with respect to a specified registration
statement, shall mean that it shall not cease to be
effective and available for Transfers of Registrable
Securities thereunder for longer than either (i) any
ten (10) consecutive business days, or (ii) an
aggregate of fifteen (15) business days during the
period specified in the relevant provision of this
Agreement.
Demanding Holders. "Demanding Holders"
shall have the meaning set forth in Section 2.1(i).
Demand Registration. "Demand
Registration" shall have the meaning set forth in
Section 2.1(i).
Exchange Act. "Exchange Act" shall mean
the Securities Exchange Act of 1934, as amended.
Holders. "Holders" shall mean the Persons
named on Schedule 1 as Holders of Registrable
Securities and Transferees of such Persons'
Registrable Securities with respect to the rights that
such Transferees shall have acquired in accordance
with Section 8, at such times as such Persons shall
own Registrable Securities.
Majority Selling Holders. "Majority Selling
Holders" shall mean those Selling Holders whose
Registrable Securities included in such registration
represent a majority of the Registrable Securities of
all Selling Holders included therein.
Person. "Person" shall mean any individual,
corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust,
unincorporated organization or government or other
agency or political subdivision thereof.
Piggyback Registration. "Piggyback
Registration" shall have the meaning set forth in
Section 3.
Preferred Stock. "Preferred Stock" shall
mean (i) the Class D Redeemable Preferred Stock of
the Company, par value $.10 per share, stated value
$1,000 per share, of the Company and (ii) shares of
capital stock of the Company issued by the
Company in respect of or in exchange for shares of
such preferred stock in connection with any stock
dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the
Company generally of shares of such preferred
stock.
Purchase Agreement. "Purchase Agreement"
shall have the meaning set forth in the Recitals.
Register, Registered and Registration.
"Register", "registered", and "registration" shall
refer to a registration effected by preparing and
filing a registration statement or similar document in
compliance with the Securities Act, and the
declaration or ordering by the Commission of
effectiveness of such registration statement or
document.
Registrable Securities. "Registrable
Securities" shall mean, subject to Section 8 and
Section 10.3: (i) the Shares owned by a Holder on
the date of determination, (ii) any shares of
Common Stock or Preferred Stock or other
securities issued as (or issuable upon the conversion
or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution
with respect to, or in exchange by the Company
generally for, or in replacement by the Company
generally of, such Shares; and (iii) any securities
issued in exchange for Shares in any merger or
reorganization of the Company; provided, however,
that Registrable Securities shall not include any
Shares which have theretofore been registered and
sold pursuant to the Securities Act or which have
been sold to the public pursuant to Rule 144 or any
similar rule promulgated by the Commission
pursuant to the Securities Act, and, provided further,
the Company shall have no obligation under Section
2 or Section 3 to register any Registrable Securities
of a Holder if the Company shall deliver to the
Holders requesting such registration an opinion of
counsel reasonably satisfactory to such Holders and
its counsel to the effect that the proposed sale or
disposition of all of the Registrable Securities for
which registration was requested does not require
registration under the Securities Act for a sale or
disposition in a single public sale, and offers to
remove any and all legends restricting transfer from
the certificates evidencing such Registrable
Securities. For purposes of this Agreement, a
Person will be deemed to be a holder of Registrable
Securities whenever such Person has the then-
existing right to acquire such Registrable Securities
(by conversion, purchase or otherwise), whether or
not such acquisition has actually been effected.
Registrable Securities then outstanding.
"Registrable Securities then outstanding" shall mean,
with respect to a specified determination date, the
Registrable Securities owned by all Holders on such
date.
Registration Expenses. "Registration
Expenses" shall have the meaning set forth in
Section 6.1.
Securities Act. "Securities Act" shall mean
the Securities Act of 1933, as amended.
Selling Holders. "Selling Holders" shall
mean, with respect to a specified registration
pursuant to this Agreement, Holders whose
Registrable Securities are included in such
registration.
Shares. "Shares" shall mean the shares of
Preferred Stock issuable upon exchange of the Notes
or upon the exercise of any warrants issuable upon
the redemption of the Notes and the shares of
Common Stock issuable upon redemption of the
Preferred Stock or upon the exercise of any warrants
issuable upon the redemption of the Preferred Stock.
Transfer. "Transfer" shall mean and include
the act of selling, giving, transferring, creating a
trust (voting or otherwise), assigning or otherwise
disposing of Registrable Securities (other than
pledging, hypothecating or otherwise transferring as
security) (and correlative words shall have
correlative meanings); provided however, that any
transfer or other disposition upon foreclosure or
other exercise of remedies of a secured creditor after
an event of default under or with respect to a
pledge, hypothecation or other transfer as security
shall constitute a "Transfer".
Underwriters' Representative.
"Underwriters' Representative shall mean the
managing underwriter, or, in the case of a co-
managed underwriting, the managing underwriter
designated as the Underwriters' Representative by
the co-managers.
Violation. "Violation" shall have the
meaning set forth in Section 7.1.
1.2 Usage.
(i) References to a Person are also
references to its assigns and successors in interest
(by means of merger, consolidation or sale of all or
substantially all the assets of such Person or
otherwise, as the case may be).
(ii) References to Registrable Securities
"owned" by a Holder shall include Registrable
Securities beneficially owned by such Person but
which are held of record in the name of a nominee,
trustee, custodian, or other agent, but shall exclude
Shares held by a Holder in a fiduciary capacity for
customers of such Person.
(iii) References to a document are to it as
amended, waived and otherwise modified from time
to time and references to a statute or other
governmental rule are to it as amended and
otherwise modified from time to time (and
references to any provision thereof shall include
references to any successor provision).
(iv) References to Sections or to
Schedules or Exhibits are to sections hereof or
schedules or exhibits hereto, unless the context
otherwise requires.
(v) The definitions set forth herein are
equally applicable both to the singular and plural
forms and the feminine, masculine and neuter forms
of the terms defined.
(vi) The term "including" and correlative
terms shall be deemed to be followed by "without
limitation" whether or not followed by such words
or words of like import.
(vii) The term "hereof" and similar terms
refer to this Agreement as a whole.
(viii) The "date of" any notice or request
given pursuant to this Agreement shall be
determined in accordance with Section 13.
Section 2. Demand Registration.
2.1. (i) The Company covenants and
agrees with the Holders of the Shares, that upon
written request of Holders that own an aggregate of
51% or more of the Registrable Securities then
outstanding (the "Demanding Holders"), the
Company shall cause there to be filed with the
Commission a registration statement meeting the
requirements of the Securities Act (a "Demand
Registration"), and each Demanding Holder shall be
entitled to have included therein (subject to Section
2.7) all or such number of such Demanding Holder's
Registrable Securities as the Demanding Holder
shall report in writing. Any request made pursuant
to this Section 2.1 shall be addressed to the attention
of the Secretary of the Company, and shall specify
the number of Registrable Securities to be
registered, the intended methods of disposition
thereof and that the request is for a Demand
Registration pursuant to this Section 2.1(i).
(ii) Whenever the Company shall have
received a demand pursuant to Section 2.1(i) to
effect the registration of any Registrable Securities,
the Company shall promptly give written notice of
such proposed registration to all Holders. Any such
Holder may, within twenty (20) days after receipt of
such notice, request in writing that all of such
Holder's Registrable Securities, or any portion
thereof designated by such Holder, be included in
the registration.
2.2. Following receipt of a request for a
Demand Registration, the Company shall:
(i) File the registration statement with
the Commission as promptly as practicable, and
shall use the Company's best efforts to have the
registration statement declared effective under the
Securities Act as soon as reasonably practicable, in
each instance giving due regard to the need to
prepare current financial statements, conduct due
diligence and complete other actions that are
reasonably necessary to effect a registered public
offering.
(ii) Use the Company's best efforts to
keep the relevant registration statement Continuously
Effective for up to 180 days or until such earlier
date as of which all the Registrable Securities under
such Registration Statement shall have been
disposed of in the manner described in the
Registration Statement. Notwithstanding the
foregoing, if for any reason the effectiveness of a
registration pursuant to this Section 2 is suspended,
the foregoing period shall be extended by the
aggregate number of days of such suspension.
2.3. The Company shall be obligated to
effect no more than two Demand Registrations. For
purposes of the preceding sentence, registration shall
not be deemed to have been effected (i) unless a
registration statement with respect thereto has
become effective, (ii) if after such registration
statement has become effective, such registration or
the related offer, sale or distribution of Registrable
Securities thereunder is interfered with by any stop
order, injunction or other order or requirement of
the Commission or other governmental agency or
court for any reason not attributable to the Selling
Holders and such interference is not thereafter
eliminated, or (iii) if reasonable and customary
conditions to closing applicable to the Company
specified in the underwriting agreement, if any,
entered into in connection with such registration are
not satisfied or waived. If the Company shall have
complied with its obligations under this Agreement,
a right to demand a registration pursuant to this
Section 2 shall be deemed to have been satisfied
upon the earlier of (x) the date as of which all of
the Registrable Securities included therein shall have
been disposed of pursuant to the Registration
Statement, and (y) the date as of which such
Demand Registration shall have been Continuously
Effective for a period of 180 days.
2.4. A registration pursuant to this Section
2 shall be on such appropriate registration form of
the Commission as shall (i) be selected by the
Company and be reasonably acceptable to the
Majority Selling Holders, and (ii) permit the
disposition of the Registrable Securities in
accordance with the intended method or methods of
disposition specified in the request pursuant to
Section 2.1(i).
2.5. If any registration pursuant to Section
2 involves an underwritten offering (whether on a
"firm", "best efforts" or "all reasonable efforts" basis
or otherwise), or an agented offering, the Majority
Selling Holders, shall have the right to select the
underwriter or underwriters and manager or
managers to administer such underwritten offering
or the placement agent or agents for such agented
offering; provided, however, that each Person so
selected shall be reasonably acceptable to the
Company.
2.6. Whenever the Company shall effect
a registration pursuant to this Section 2 in
connection with an underwritten offering by one or
more Selling Holders of Registrable Securities: (i)
if such Selling Holders have requested the inclusion
therein of more than one class of Registrable
Securities, and the Underwriters' Representative or
Agent advises each such Selling Holder in writing
that, in its opinion, the inclusion of more than one
class of Registrable Securities would adversely
affect such offering, the Demanding Holders holding
at least a majority of the Registrable Securities
proposed to be sold therein by them, shall decide
which class of Registrable Securities shall be
included therein in such offering and the related
registration, and the other class shall be excluded;
and (ii) if the Underwriters' Representative or Agent
advises each such Selling Holder in writing that, in
its opinion, the amount of securities requested to be
included in such offering (whether by Selling
Holders or others) exceeds the amount which can be
sold in such offering within a price range acceptable
to the Majority Selling Holders, securities shall be
included in such offering and the related
registration, to the extent of the amount which can
be sold within such price range.
Section 3. Piggyback Registration.
3.1. If at any time the Company proposes
to register (including for this purpose a registration
effected by the Company for shareholders of the
Company other than the Holders) securities under
the Securities Act in connection with a public
offering solely for cash on Form ▇-▇, ▇-▇ or S-3 (or
any replacement or successor forms), the Company
shall promptly give each Holder of Registrable
Securities written notice of such registration (a
"Piggyback Registration"). Upon the written request
of each Holder given within 20 days following the
date of such notice, the Company shall cause to be
included in such registration statement and use its
best efforts to be registered under the Securities Act
all the Registrable Securities that each such Holder
shall have requested to be registered. The Company
shall have the absolute right to withdraw or cease to
prepare or file any registration statement for any
offering referred to in this Section 3 without any
obligation or liability to any Holder.
3.2. If the Underwriters' Representative or
Agent shall advise the Company in writing (with a
copy to each Selling Holder) that, in its opinion, the
amount of Registrable Securities requested to be
included in such registration would materially
adversely affect such offering, or the timing thereof,
then the Company will include in such registration,
to the extent of the amount and class which the
Company is so advised can be sold without such
material adverse effect in such offering: first, all
securities proposed to be sold by the Company for
its own account; second, the Registrable Securities
requested to be included in such registration by
Holders pursuant to this Section 3, and all other
securities being registered pursuant to the exercise of
contractual rights comparable to the rights granted
in this Section 3, pro rata based on the estimated
gross proceeds from the sale thereof; provided,
however, that the Holders of Registrable Securities
may have their respective proportions of included
securities reduced below their pro rata portion to the
extent, but only to the extent, that such reduction is
required by the Registration Rights Agreement dated
as of January 29, 1996 by and among the Company,
▇▇▇▇▇▇
Investments, Inc. and the subscribers to the
Company's Series C Preferred Stock; and third all
other securities requested to be included in such
registration.
3.3. Each Holder shall be entitled to have
its Registrable Securities included in an unlimited
number of Piggyback Registrations pursuant to this
Section 3.
3.4. If the Company has previously filed
a registration statement with respect to Registerable
Securities pursuant to Section 2, and if such
previous registration has not been withdrawn or
abandoned, the Company will not file or cause to be
effected any other registration of any of its equity
securities or securities convertible or exchangeable
into or exercisable for its equity securities under the
Securities Act (except on Form S-8 or any successor
form), whether on its own behalf or at the request of
any holder or holders of such securities, until a
period of 90 days has elapsed from the effective
date of such a previous registration.
Section 4. Registration Procedures. Whenever
required under Section 2 or Section 3 to effect the
registration of any Registrable Securities, the
Company shall, as expeditiously as practicable:
4.1. Prepare and file with the Commission
a registration statement with respect to such
Registrable Securities and use the Company's best
efforts to cause such registration statement to
become effective; provided, however, that before
filing a registration statement or prospectus or any
amendments or supplements thereto, including
documents incorporated by reference after the initial
filing of the registration statement and prior to
effectiveness thereof, the Company shall furnish to
one firm of counsel for the Selling Holders (selected
by the Majority Selling Holders) copies of all such
documents in the form substantially as proposed to
be filed with the Commission at least four (4)
business days prior to filing for review and
comment by such counsel and if such counsel
reasonably disagrees with the Company as to the
contents of any such disclosure, the Selling Holders
may withdraw any Shares to be so registered from
any such filing; provided, however, that a demand
registration shall not be deemed to have been
effected for purposes of Section 2 in connection
with any registration statement from which such
Shares are so withdrawn.
4.2. Prepare and file with the Commission
such amendments and supplements to such
registration statement and the prospectus used in
connection with such registration statement as may
be necessary to comply with the provisions of the
Securities Act and rules thereunder with respect to
the disposition of all securities covered by such
registration statement. If the registration is for an
underwritten offering, the Company shall amend the
registration statement or supplement the prospectus
whenever required by the terms of the underwriting
agreement entered into pursuant to Section 5.2. In
the event that any Registrable Securities included in
a registration statement subject to, or required by,
this Agreement remain unsold at the end of the
period during which the Company is obligated to
use its best efforts to maintain the effectiveness of
such registration statement, the Company may file a
post-effective amendment to the registration
statement for the purpose of removing such
Securities from registered status.
4.3. Furnish to each Selling Holder of
Registrable Securities, without charge, such numbers
of copies of the registration statement, any pre-
effective or post-effective amendment thereto, the
prospectus, including each preliminary prospectus
and any amendments or supplements thereto, in each
case in conformity with the requirements of the
Securities Act and the rules thereunder, and such
other related documents as any such Selling Holder
may reasonably request in order to facilitate the
disposition of Registrable Securities owned by such
Selling Holder.
4.4. Use the Company's best efforts (i) to
register and qualify the securities covered by such
registration statement under such other securities or
Blue Sky laws of such states or jurisdictions as shall
be reasonably requested by the Underwriters'
Representative or Agent (as applicable, or if
inapplicable, the Majority Selling Holders), and (ii)
to obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the
lifting of any suspension of the qualification (or
exemption from qualification) of the offer and
transfer of any of the Registrable Securities in any
jurisdiction, at the earliest possible moment;
provided, however, that the Company shall not be
required in connection therewith or as a condition
thereto to qualify to do business or to file a general
consent to service of process in any such states or
jurisdictions.
4.5. In the event of any underwritten or
agented offering, enter into and perform the
Company's obligations under an underwriting or
agency agreement (including indemnification and
contribution obligations of underwriters or agents),
in usual and customary form, with the managing
underwriter or underwriters of or agents for such
offering. The Company shall also cooperate with
the Majority Selling Holders and the Underwriters'
Representative or Agent for such offering in the
marketing of the Registerable Shares, including
making available the Company's officers,
accountants, counsel, premises, books and records
for such purpose, but the Company shall not be
required to incur any out-of-pocket expense pursuant
to this sentence.
4.6. Promptly notify each Selling Holder
of any stop order issued or threatened to be issued
by the Commission in connection therewith and take
all reasonable actions required to prevent the entry
of such stop order or to remove it if entered.
4.7. Make generally available to the
Company's security holders copies of all periodic
reports, proxy statements, and other information
referred to in Section 10.1 and an earnings statement
satisfying the provisions of Section 11(a) of the
Securities Act no later than 90 days following the
end of the 12-month period beginning with the first
month of the Company's first fiscal quarter
commencing after the effective date of each
registration statement filed pursuant to this
Agreement.
4.8. Make available for inspection by any
Selling Holder, any underwriter participating in such
offering and the representatives of such Selling
Holder and Underwriter (but not more than one firm
of counsel to such Selling Holders), all financial and
other information as shall be reasonably requested
by them, and provide the Selling Holder, any
underwriter participating in such offering and the
representatives of such Selling Holder and
Underwriter the opportunity to discuss the business
affairs of the Company with its principal executive
officers and independent public accountants who
have certified the audited financial statements
included in such registration statement, in each case
all as necessary to enable them to exercise their due
diligence responsibility under the Securities Act;
provided, however, that information that the
Company determines, in good faith, to be
confidential and which the Company advises such
Person in writing, is confidential shall not be
disclosed unless such Person signs a confidentiality
agreement reasonably satisfactory to the Company or
the related Selling Holder of Registrable Securities
agrees to be responsible for such Person's breach of
confidentiality on terms reasonably satisfactory to
the Company.
4.9. Use the Company's best efforts to
obtain a so-called "comfort letter" from its
independent public accountants, and legal opinions
of counsel to the Company addressed to the
Underwriters and, if such counsel is also
representing the Selling Holders, to such Selling
Holders, in customary form and covering such
matters of the type customarily covered by such
letters. The Company shall furnish to each Selling
Holder copies of any such comfort letter or legal
opinion that is not otherwise addressed to such
Selling Holder. Delivery of any such opinion or
comfort letter shall be subject to the recipient
furnishing such written representations or
acknowledgments as are customarily provided by
selling shareholders who receive such comfort letters
or opinions.
4.10. Provide and cause to be maintained a
transfer agent and registrar for all Registrable
Securities covered by such registration statement
from and after a date not later than the effective
date of such registration statement.
4.11. Use all reasonable efforts to cause the
Registrable Securities covered by such registration
statement (i) if the Common Stock or Preferred
Stock is then listed on a securities exchange or
included for quotation in a recognized trading
market, to continue to be so listed or included for a
reasonable period of time after the offering, and (ii)
to be registered with or approved by such other
United States or state governmental agencies or
authorities as may be necessary by virtue of the
business and operations of the Company to enable
the Selling Holders of Registrable Securities to
consummate the disposition of such Registrable
Securities.
4.12. Use the Company's reasonable efforts
to provide a CUSIP number for the Registrable
Securities prior to the effective date of the first
registration statement including Registrable
Securities.
4.13. Take such other actions as are
reasonably required in order to expedite or facilitate
the disposition of Registrable Securities included in
each such registration.
Section 5. Holders' Obligations. It shall be a
condition precedent to the obligations of the
Company to take any action pursuant to this
Agreement with respect to the Registrable Securities
of any Selling Holder of Registrable Securities that
such Selling Holder shall:
5.1. Furnish to the Company such
information regarding such Selling Holder, the
number of the Registrable Securities owned by it,
and the intended method of disposition of such
securities and such other information known to such
Selling Holder as shall reasonably be required to
effect the registration of such Selling Holder's
Registrable Securities, and to cooperate with the
Company in preparing such registration.
5.2. Agree to sell their Registrable
Securities to the underwriters at the same price and
on substantially the same terms and conditions as
the Company or the other Persons on whose behalf
the registration statement was being filed have
agreed to sell their securities, and to execute the
underwriting agreement agreed to by the Majority
Selling Holders (in the case of a registration under
Section 2) or the Company (in the case of a
registration under Section 3).
Section 6. Expenses of Registration. Expenses
in connection with registrations pursuant to this
Agreement shall be allocated and paid as follows:
6.1. With respect to each Demand
Registration, the Company shall bear and pay all
expenses incurred in connection with any
registration, filing, or qualification of Registrable
Securities with respect to such Demand Registrations
for each Selling Holder (which right may be
assigned to any Person to whom Registrable
Securities are Transferred as permitted by Section
8), including all registration, filing and National
Association of Securities Dealers, Inc. fees, all fees
and expenses of complying with securities or blue
sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses,
the reasonable fees and disbursements of counsel for
the Company, and of the Company's independent
public accountants, including the expenses of "cold
comfort" letters required by or incident to such
performance and compliance, and, in the case of a
demand registration pursuant to Section 2, the
reasonable fees and disbursements of one firm of
counsel for the Selling Holders of Registrable
Securities (selected by Demanding Holders owning
a majority of the Registrable Securities owned by
Demanding Holders to be included in a Demand
Registration) (the "Registration Expenses"), but
excluding underwriting discounts and commissions
relating to Registrable Securities (which shall be
paid on a pro rata basis by the Selling Holders) and
any fees and disbursements of counsel for the
Selling Holders of Registrable Securities in any
registration pursuant to Section 3, provided,
however, that the Company shall not be required to
pay for any expenses of any registration proceeding
begun pursuant to Section 2 if the registration is
subsequently withdrawn at the request of the
Majority Selling Holders (in which case all Selling
Holders shall bear such expense), unless Holders
whose Registrable Securities constitute a majority of
the Registrable Securities then outstanding agree that
such withdrawn registration shall constitute one of
the demand registrations under Section 2 hereof.
6.2. The Company shall bear and pay all
Registration Expenses incurred in connection with
any Piggyback Registrations pursuant to Section 3
for each Selling Holder (which right may be
Transferred to any Person to whom Registrable
Securities are Transferred as permitted by Section
8), but excluding underwriting discounts and
commissions relating to Registrable Securities
(which shall be paid on a pro rata basis by the
Selling Holders of Registrable Securities).
6.3. Any failure of the Company to pay
any Registration Expenses as required by this
Section 6 shall not relieve the Company of its
obligations under this Agreement.
Section 7. Indemnification; Contribution. If any
Registrable Securities are included in a registration
statement under this Agreement:
7.1. To the extent permitted by applicable
law, the Company shall indemnify and hold
harmless each Selling Holder, each Person, if any,
who controls such Selling Holder within the
meaning of the Securities Act, and each officer,
director, partner, and employee of such Selling
Holder and such controlling Person, against any and
all losses, claims, damages, liabilities and expenses
(joint or several), including attorneys' fees and
disbursements and expenses of investigation,
incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation,
or to which any of the foregoing Persons may
become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar
as such losses, claims, damages, liabilities and
expenses arise out of or are based upon any of the
following statements, omissions or violations
(collectively a "Violation"):
(i) Any untrue statement or
alleged untrue statement of a material fact contained
in such registration statement, including any
preliminary prospectus or final prospectus contained
therein, or any amendments or supplements thereto;
(ii) The omission or alleged
omission to state therein a material fact required to
be stated therein, or necessary to make the
statements therein not misleading; or
(iii) Any violation or alleged
violation by the Company of the Securities Act, the
Exchange Act, any applicable state securities law or
any rule or regulation promulgated under the
Securities Act, the Exchange Act or any applicable
state securities law; provided, however, that the
indemnification required by this Section 7.1 shall
not apply to amounts paid in settlement of any such
loss, claim, damage, liability or expense if such
settlement is effected without the consent of the
Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any
such case for any such loss, claim, damage, liability
or expense to the extent that it arises out of or is
based upon a Violation which (i) occurs in reliance
upon and in conformity with written information
furnished to the Company by the indemnified party
expressly for use in connection with such
registration or (ii) arises from an untrue statement or
omission of a material fact contained in a
preliminary prospectus if such untrue statement or
omission was corrected in a subsequent preliminary
prospectus or the final prospectus and copies of any
such subsequent preliminary prospectus or final
prospectus have been made available by the
Company to the Underwriters (or the Selling
Holders in the case of a non-underwritten offering).
The Company shall also indemnify underwriters,
selling brokers, dealer managers and similar
securities industry professionals participating in the
distribution, their officers, directors, agents and
employees and each person who controls such
persons (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act)
to the same extent as provided above with respect to
the indemnification of the Selling Holders.
7.2. To the extent permitted by applicable
law, each Selling Holder shall indemnify and hold
harmless the Company, each of its directors, each of
its officers who shall have signed the registration
statement, each Person, if any, who controls the
Company within the meaning of the Securities Act,
any other Selling Holder, any controlling Person of
any such other Selling Holder and each officer,
director, partner, and employee of such other Selling
Holder and such controlling Person, against any and
all losses, claims, damages, liabilities and expenses
(joint and several), including attorneys' fees and
disbursements and expenses of investigation,
incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation,
or to which any of the foregoing Persons may
otherwise become subject under the Securities Act,
the Exchange Act or other federal or state laws,
insofar as such losses, claims, damages, liabilities
and expenses arise out of or are based upon any
Violation, in each case to the extent (and only to the
extent) that such Violation (i) occurs in reliance
upon and in conformity with written information
furnished by such Selling Holder expressly for use
in connection with such registration or (ii) arises out
of the failure to distribute by the Underwriters (or
the Selling Holders in the case of a non-
underwritten offering) of any preliminary prospectus
or prospectus made available by the Company to the
Underwriters (or such Selling Holders, as the case
may be) which corrects an untrue statement or
omission of a material fact contained in a previous
preliminary prospectus; provided, however, that (x)
the indemnification required by this Section 7.2
shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or expense if
settlement is effected without the consent of the
relevant Selling Holder of Registrable Securities,
which consent shall not be unreasonably withheld,
and (y) in no event shall the amount of any
indemnity under this Section 7.2 exceed the gross
proceeds from the applicable offering received by
such Selling Holder.
7.3. Promptly after receipt by an
indemnified party under this Section 7 of notice of
the commencement of any action, suit, proceeding,
investigation or threat thereof made in writing for
which such indemnified party may make a claim
under this Section 7, such indemnified party shall
deliver to the indemnifying party a written notice of
the commencement thereof and the indemnifying
party shall have the right to participate in, and, to
the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel
reasonably satisfactory to each of the parties;
provided, however, that an indemnified party shall
have the right to retain its own counsel, with the
fees and disbursements and expenses to be paid by
the indemnifying party, if representation of such
indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to
actual or potential differing interests between such
indemnified party and any other party represented
by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party
within a reasonable time following the
commencement of any such action, if prejudicial to
its ability to defend such action, shall relieve such
indemnifying party of any liability to the
indemnified party under this Section 7 but shall not
relieve the indemnifying party of any liability that it
may have to any indemnified party otherwise than
pursuant to this Section 7. Any fees and expenses
incurred by the indemnified party (including any
fees and expenses incurred in connection with
investigating or preparing to defend such action or
proceeding) shall be paid to the indemnified party,
as incurred, within thirty (30) days of written notice
thereof to the indemnifying party (regardless of
whether it is ultimately determined that an
indemnified party is not entitled to indemnification
hereunder). Any such indemnified party shall have
the right to employ separate counsel in any such
action, claim or proceeding and to participate in the
defense thereof, but the fees and expenses of such
counsel shall be the expenses of such indemnified
party unless (i) the indemnifying party has agreed to
pay such fees and expenses or (ii) the indemnifying
party shall have failed to promptly assume the
defense of such action, claim or proceeding or (iii)
the named parties to any such action, claim or
proceeding (including any impleaded parties) include
both such indemnified party and the indemnifying
party, and such indemnified party shall have been
advised by counsel that there may be one or more
legal defenses available to it which are different
from or in addition to those available to the
indemnifying party and that the assertion of such
defenses would create a conflict of interest such that
counsel employed by the indemnifying party could
not faithfully represent the indemnified party (in
which case, if such indemnified party notifies the
indemnifying party in writing that it elects to
employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not
have the right to assume the defense of such action,
claim or proceeding on behalf of such indemnified
party, it being understood, however, that the
indemnifying party shall not, in connection with any
one such action, claim or proceeding or separate but
substantially similar or related actions, claims or
proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more
than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such
indemnified parties. No indemnifying party shall be
liable to an indemnified party for any settlement of
any action, proceeding or claim without the written
consent of the indemnifying party, which consent
shall not be unreasonably withheld.
7.4. If the indemnification required by this
Section 7 from the indemnifying party is unavailable
to an indemnified party hereunder in respect of any
losses, claims, damages, liabilities or expenses
referred to in this Section 7:
(i) The indemnifying party, in
lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion
as is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in
connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations.
The relative fault of such indemnifying party and
indemnified parties shall be determined by reference
to, among other things, whether any Violation has
been committed by, or relates to information
supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or
prevent such Violation. The amount paid or payable
by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set
forth in Section 7.1 and Section 7.2, any legal or
other fees or expenses reasonably incurred by such
party in connection with any investigation or
proceeding.
(ii) The parties hereto agree that
it would not be just and equitable if contribution
pursuant to this Section 7.4 were determined by pro
rata allocation or by any other method of allocation
which does not take into account the equitable
considerations referred to in Section 7.4(i). 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.
7.5. If indemnification is available under
this Section 7, the indemnifying parties shall
indemnify each indemnified party to the full extent
provided in this Section 7 without regard to the
relative fault of such indemnifying party or
indemnified party or any other equitable
consideration referred to in Section 7.4.
7.6. The obligations of the Company and
the Selling Holders of Registrable Securities under
this Section 7 shall survive the completion of any
offering of Registrable Securities pursuant to a
registration statement under this Agreement, and
otherwise.
Section 8. Transfer of Registration Rights.
Rights with respect to Registrable Securities may be
Transferred by the Holder to any Person in
connection with the Transfer of Registrable
Securities to such Person, in all cases, if (x) any
such Transferee that is not a party to this Agreement
shall have executed and delivered to the Secretary of
the Company a properly completed agreement
substantially in the form of Exhibit A, and (y) the
Transferor shall have delivered to the Secretary of
the Company, no later than 15 days following the
date of the Transfer, written notification of such
Transfer setting forth the name of the Transferor,
name and address of the Transferee, and the number
of Registrable Securities which shall have been so
Transferred.
Section 9. Holdback. Each Holder entitled
pursuant to this Agreement to have Registrable
Securities included in a registration statement
prepared pursuant to this Agreement, if so requested
by the Underwriters' Representative or Agent in
connection with an offering of any Registrable
Securities, shall not effect any public sale or
distribution of shares of Common Stock or Preferred
Stock or any securities convertible into or
exchangeable or exercisable for shares of Common
Stock or Preferred Stock, including a sale pursuant
to Rule 144 under the Securities Act (except as part
of such underwritten or agented registration), during
the 5-day period prior to, and during the 90-day
period beginning on, the date such registration
statement is declared effective under the Securities
Act by the Commission, provided that such Holder
is timely notified of such effective date in writing
by the Company or such Underwriters'
Representative or Agent. In order to enforce the
foregoing covenant, the Company shall be entitled
to impose stop-transfer instructions with respect to
the Registrable Securities of each Holder until the
end of such period.
Section 10. Covenants of the Company. The
Company hereby agrees and covenants as follows:
10.1. The Company shall file as and when
applicable, on a timely basis, all reports required to
be filed by it under the Exchange Act. If the
Company is not required to file reports pursuant to
the Exchange Act, upon the request of any Holder
of Registrable Securities, the Company shall make
publicly available the information specified in
subparagraph (c)(2) of Rule 144 of the Securities
Act, and take such further action as may be
reasonably required from time to time and as may
be within the reasonable control of the Company, to
enable the Holders to Transfer Registrable Securities
without registration under the Securities Act within
the limitation of the exemptions provided by Rule
144 under the Securities Act or any similar rule or
regulation hereafter adopted by the Commission.
10.2. The Company shall not, and shall not
permit its majority owned subsidiaries to, effect any
public sale or distribution of any shares of Common
Stock or Preferred Stock or any securities
convertible into or exchangeable or exercisable for
shares of Common Stock or Preferred Stock, during
the five business days prior to, and during the 90-
day period beginning on, the commencement of a
public distribution of the Registrable Securities
pursuant to any registration statement prepared
pursuant to Section 2 of this Agreement
10.3. The Company shall not, directly or
indirectly, (x) enter into any merger, consolidation
or reorganization in which the Company shall not be
the surviving corporation or (y) Transfer or agree to
Transfer all or substantially all the Company's
assets, unless prior to such merger, consolidation,
reorganization or asset Transfer, the surviving
corporation or the Transferee, respectively, shall
have agreed in writing to assume the obligations of
the Company under this Agreement, and for that
purpose references hereunder to "Registrable
Securities" shall be deemed to include the securities
which the Holders of Registrable Securities would
be entitled to receive in exchange for Registrable
Securities pursuant to any such merger,
consolidation or reorganization.
10.4. The Company shall not grant to any
Person (other than a Holder of Registrable
Securities) any registration rights with respect to
securities of the Company, or enter into any
agreement, that would entitle the holder thereof to
have securities owned by it included in a Demand
Registration unless such registration rights provide
that in the event that the Underwriter of any such
demand registration determines that marketing
factors require a limitation of the number of
Registrable Securities to be underwritten, the
Underwriter may limit the number of Registrable
Securities to be included in the demand registration
and underwritten public offering such that all of the
Registrable Securities to be sold by any such Person
shall be excluded and withdrawn from such
registration prior to the exclusion and withdrawal of
any Registrable Securities to be sold by any Selling
Holder.
Section 11. Amendment, Modification and
Waivers; Further Assurances.
(i) This Agreement may be amended
with the consent of the Company and the Company
may take any action herein prohibited, or omit to
perform any act herein required to be performed by
it, only if the Company shall have obtained the
written consent of Holders owning Registrable
Securities possessing a majority in number of the
Registrable Securities then outstanding to such
amendment, action or omission to act.
(ii) No waiver of any terms or conditions
of this Agreement shall operate as a waiver of any
other breach of such terms and conditions or any
other term or condition, nor shall any failure to
enforce any provision hereof operate as a waiver of
such provision or of any other provision hereof. No
written waiver hereunder, unless it by its own terms
explicitly provides to the contrary, shall be
construed to effect a continuing waiver of the
provisions being waived and no such waiver in any
instance shall constitute a waiver in any other
instance or for any other purpose or impair the right
of the party against whom such waiver is claimed in
all other instances or for all other purposes to
require full compliance with such provision.
(iii) Each of the parties hereto shall
execute all such further instruments and documents
and take all such further action as any other party
hereto may reasonably require in order to effectuate
the terms and purposes of this Agreement.
Section 12. Assignment; Benefit. This Agreement
and all of the provisions hereof shall be binding
upon and shall inure to the benefit of the parties
hereto and their respective heirs, assigns, executors,
administrators or successors; provided, however, that
except as specifically provided herein with respect
to certain matters, neither this Agreement nor any of
the rights, interests or obligations hereunder shall be
assigned or delegated by the Company without the
prior written consent of Holders owning Registrable
Securities possessing a majority in number of the
Registrable Securities outstanding on the date as of
which such delegation or assignment is to become
effective. A Holder may Transfer its rights
hereunder to a successor in interest to the
Registrable Securities owned by such assignor only
as permitted by Section 8.
Section 13. Miscellaneous.
13.1. Governing Law. THIS
AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING REGARD TO THE
CONFLICT OF LAWS PRINCIPLES
THEREOF.
13.2. Notices. All notices and requests
given pursuant to this Agreement shall be in writing
and shall be made by hand-delivery, first-class mail
(registered or certified, return receipt requested),
confirmed facsimile or overnight air courier
guaranteeing next business day delivery to the
relevant address set forth below or in the relevant
agreement in the form of Exhibit A whereby such
party became bound by the provisions of this
Agreement.
If to the Company:
The Aegis Consumer Funding Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
If to the Holder:
III Finance Ltd.
c/o Admiral Administration, Ltd.
Anchorage Center, 2nd Floor
Grand Cayman, Cayman Islands, B.W.I.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ Bree
with a copy to:
III Offshore Advisors
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Except as otherwise provided in this Agreement, the
date of each such notice and request shall be
deemed to be, and the date on which each such
notice and request shall be deemed given shall be:
at the time delivered, if personally delivered or
mailed; when receipt is acknowledged, if sent by
facsimile; and the next business day after timely
delivery to the courier, if sent by overnight air
courier guaranteeing next business day delivery.
13.3. Entire Agreement; Integration. This
Agreement supersedes all prior agreements between
or among any of the parties hereto with respect to
the subject matter contained herein and therein, and
such agreements embody the entire understanding
among the parties relating to such subject matter.
13.4. Injunctive Relief. Each of the parties
hereto acknowledges that in the event of a breach by
any of them of any material provision of this
Agreement, the aggrieved party may be without an
adequate remedy at law. Each of the parties
therefore agrees that in the event of such a breach
hereof the aggrieved party may elect to institute and
prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to
enjoin the continuing breach hereof. By seeking or
obtaining any such relief, the aggrieved party shall
not be precluded from seeking or obtaining any
other relief to which it may be entitled.
13.5. Section Headings. Section headings
are for convenience of reference only and shall not
affect the meaning of any provision of this
Agreement.
13.6 Counterparts. This Agreement may
be executed in any number of counterparts, each of
which shall be an original, and all of which shall
together constitute one and the same instrument. All
signatures need not be on the same counterpart.
13.7. Severability. If any provision of this
Agreement shall be invalid or unenforceable, such
invalidity or unenforceability shall not affect the
validity and enforceability of the remaining
provisions of this Agreement, unless the result
thereof would be unreasonable, in which case the
parties hereto shall negotiate in good faith as to
appropriate amendments hereto.
13.8. Filing. A copy of this Agreement
and of all amendments thereto shall be filed at the
principal executive office of the Company with the
corporate recorder of the Company.
13.9. Termination. This Agreement may be
terminated at any time by a written instrument
signed by the parties hereto. Unless sooner
terminated in accordance with the preceding
sentence, this Agreement (other than Section 7
hereof) shall terminate in its entirety on such date as
there shall be no Registrable Securities outstanding,
provided that any shares of Common Stock or
Preferred Stock previously subject to this Agreement
shall not be Registrable Securities following the sale
of any such shares in an offering registered pursuant
to this Agreement.
13.10. Attorneys' Fees. In any action or
proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be
entitled to recover reasonable attorneys' fees
(including any fees incurred in any appeal) in
addition to its costs and expenses and any other
available remedy.
13.11. No Third Party Beneficiaries.
Nothing herein expressed or implied is intended to
confer upon any person, other than the parties hereto
or their respective permitted assigns, successors,
heirs and legal representatives, any rights, remedies,
obligations or liabilities under or by reason of this
Agreement.
IN WITNESS WHEREOF, this
Agreement has been duly executed by the parties
hereto as of the date first written above.
THE AEGIS CONSUMER FUNDING GROUP,
INC.
By:______________________________
Name:
Title:
THE HIGH RISK OPPORTUNITIES HUB
FUND, LTD.
By:_____________________________
Name:
Title:
III FINANCE, LTD.
By:______________________________
Name:
Title:
SCHEDULE 1
to Registration
Rights Agreement
HOLDERS OF REGISTRABLE SECURITIES
Principal
Amount of Notes Holder
to be Purchased
The High Risk Opportunities
Hub Fund, Ltd. . . . . . . . . . . . . $5,000,000
III Finance, Ltd.. . . . . . . . . . . .$16,333,333
TOTAL. . . . . . . . . . . . . . . . . .$21,333,333
EXHIBIT A
to Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE REGISTRATION RIGHTS
AGREEMENT
The undersigned, being the transferee
of [_____ shares of the common stock, $.01 par
value per share] [_____ shares of the preferred
stock, $.10 par value per share; $1,000 stated value
per share] [or describe other capital stock received
in exchange for such common stock] (the
"Registrable Securities"), of The Aegis Consumer
Funding Group, Inc., a Delaware corporation (the
"Company"), as a condition to the receipt of such
Registrable Securities, acknowledges that matters
pertaining to the registration of such Registrable
Securities are governed by the Registration Rights
Agreement dated as of March ___, 1997 initially
between the Company and the Holder referred to
therein (the "Agreement"), and the undersigned
hereby (1) acknowledges receipt of a copy of the
Agreement, and (2) agrees to be bound as a Holder
by the terms of the Agreement, as the same has
been or may be amended from time to time.
Agreed to this __ day of
______________, ____________.
_________________________________
_________________________________
_________________________________
Include address for notices.
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