Exhibit 4.04
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
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October 22, 2001 and is entered into by and between (i) ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc, a
Delaware corporation located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Company" or "▇▇▇▇▇▇▇▇▇.▇▇▇"), and Budget Group, Inc. a Delaware
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corporation, located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("BGI").
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R E C I T A L S
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A. The Company and BGI have entered into an Amendment to Marketing
Agreement dated as October 22, 2001 (the "Amendment"). The Amendment amends the
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Marketing Agreement dated as of March 6, 2000 (the "Agreement") previously
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entered into by and between the Company and BGI. Pursuant to Section 5(b) of the
Amendment, BGI will acquire from the Company 4,804,560 shares of the Company's
common stock (together with any shares of capital stock of the Company issued as
a dividend or distribution thereon or in exchange therefor, the "Shares").
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B. Pursuant to Section 6 of the Amendment, the Company has agreed to
register the Shares as provided herein.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, BGI and the Company (collectively, the
"Parties") agree as follows:
1. Definitions. For purposes of this Agreement:
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"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
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any successor statute.
"Register," "registered," and "registration" refer to a registration
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effected by preparing and filing with the Securities and Exchange Commission
(the "Commission") a registration statement in compliance with the Securities
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Act, and the declaration or ordering by the Commission of effectiveness of such
registration statement or document.
"Securities Act" means the Securities Act of 1933, as amended, or any
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successor statute.
Other capitalized terms not defined herein will have the meanings given
to them in the Amendment or the Agreement.
2. Registration.
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2.1 BGI Limitations. In connection with and as a condition to
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▇▇▇▇▇▇▇▇▇.▇▇▇'s obligations with respect to the Registration Statement
pursuant to Section 2.2 hereof, BGI covenants and agrees that it will
not, unless ▇▇▇▇▇▇▇▇▇.▇▇▇ consents thereto in writing, sell, in
transactions reported on the NASDAQ consolidated system, (A) on any
given day, more than the lesser of (i) three percent (3%) of the
average daily trading volume for the ▇▇▇▇▇▇▇▇▇.▇▇▇ Common Stock during
the ten (10) business days prior to the date of any sale of Shares or
(ii) 125,000 shares, or (B) during any given calendar week, more than
the lesser of (i) eight percent (8%) of the average weekly trading
volume for the ▇▇▇▇▇▇▇▇▇.▇▇▇ Common Stock during the calendar week
preceding the week of any sale of shares or (ii) 500,000 shares. This
limitation shall apply to any sales by BGI of either the 1,085,271
Original Shares or the Shares in transactions reported on the NASDAQ
consolidated system, but shall not apply to any sales of Shares or
Original Shares by BGI that are not so reported; provided, however, in
the event that if BGI desires to sell Shares or Original Shares in
transactions not reported on NASDAQ or to enter into any other sale or
disposition of the Shares or Original Shares in transactions not
reported, then as a condition of such sale or disposition the
purchaser, pledgee or other transferee must agree with BGI, in a
written agreement stated to be for the benefit of ▇▇▇▇▇▇▇▇▇.▇▇▇, to be
bound by the provisions of this Section 2.1 with respect to limitations
on transactions reported on the NASDAQ consolidated system with respect
to sales or other dispositions of Shares or Original Shares (but not
other shares of ▇▇▇▇▇▇▇▇▇.▇▇▇ that it may own) and to use one of the
investment bank traders listed in this section with respect to such
transactions. If BGI sells its Shares or Original Shares then BGI shall
use one of the following investment bank traders; Credit Swisse First
Boston, Deutsche Bank Alex.▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇▇ & Company Securities,
Inc., ▇.▇. ▇▇▇▇▇▇ & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇.
2.2 Shelf Registration Rights. ▇▇▇▇▇▇▇▇▇.▇▇▇ shall by 5:30
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p.m. (eastern time) on the first business day after ▇▇▇▇▇▇▇▇▇.▇▇▇ holds
a conference call to discuss its financial results for the quarter
ended September 30, 2001 (or, if earlier, by 5:30 p.m. (eastern time)
on November 2, 2001) prepare and file with the Commission a
registration statement on Form S-3 covering offers and sales of the
Shares by BGI on a delayed or continuous basis pursuant to Rule 415
under the Securities Act on the Nasdaq National Market (or the
facilities of any national securities exchange on which the
▇▇▇▇▇▇▇▇▇.▇▇▇ Common Stock is then traded), or in privately-negotiated
transactions or through other customary methods (the "Registration
Statement"). ▇▇▇▇▇▇▇▇▇.▇▇▇ will use its best efforts, subject to
receipt of necessary information from BGI to be included in the
Registration Statement, to cause the registration Statement to be
declared effective as soon as practicable.
2.3 Further Obligations of ▇▇▇▇▇▇▇▇▇.▇▇▇ Relating to the
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Registration.
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(a) Blue Sky Compliance. ▇▇▇▇▇▇▇▇▇.▇▇▇ shall, in
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connection with the Registration Statement, use its commercially
reasonable
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efforts to register and qualify the Shares covered by the Registration
Statement under such other securities or "blue sky" laws of such
states as shall be reasonably requested by BGI; provided, however,
that the obligation to make such registrations and qualifications
shall only arise if such action is required by law in order for
securities to be traded in such state; and provided, further, that
▇▇▇▇▇▇▇▇▇.▇▇▇ 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 unless ▇▇▇▇▇▇▇▇▇.▇▇▇
is already subject to service in such jurisdiction and except as may
be required by the Securities Act.
(b) Furnishing of Prospectus. With respect to the
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Registration Statement, ▇▇▇▇▇▇▇▇▇.▇▇▇ shall use commercially
reasonable efforts to furnish to BGI copies of any preliminary
prospectus and, as expeditiously as reasonably possible after the
effectiveness of the Registration Statement, furnish to BGI such
number of copies of a final prospectus in conformity with the
requirements of the Securities Act, and such other documents as BGI
may reasonably request, in order to facilitate the resale or other
disposition of the Shares.
2.4 Amendments. With respect to the Registration Statement, and
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subject to Section 2.6 of this Agreement, ▇▇▇▇▇▇▇▇▇.▇▇▇ shall prepare
and file with the Commission such amendments to the Registration
Statement and amendments or supplements to the prospectus contained
therein as may be necessary to keep such Registration Statement
effective and such Registration Statement and prospectus accurate and
complete for the entire period during which the Registration Statement
remains effective.
2.5 Notices. ▇▇▇▇▇▇▇▇▇.▇▇▇ shall:
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(a) Notify BGI promptly after it shall receive notice
thereof, of the date and time when the Registration Statement and each
post-effective amendment thereto has become effective;
(b) Notify BGI promptly of any request by the Commission
for the amending or supplementing of the Registration Statement or
prospectus or for additional information relating to BGI or the Shares
held by BGI;
(c) Use commercially reasonable best efforts to notify BGI
at any time when a prospectus relating to the Shares is required to be
delivered under the Securities Act, of any event which would cause any
such prospectus or any other prospectus as then in effect to include
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 under which they were made, not
misleading, and, subject to Section 2.6, promptly prepare and file
with the Commission, and promptly notify BGI of the filing of, such
amendments or supplements to the Registration Statement or prospectus
as may be necessary to correct any such statements or omissions; and,
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(d) Notify BGI promptly after it shall receive notice of the
issuance of any stop order by the Commission suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose and, subject to Section
2.7, promptly use commercially reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop
order is issued.
2.6 Conditions and Limitations on Registration Rights. The
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registration rights granted by this Section 2 are subject to the
following additional conditions and limitations:
(a) Delay and Suspension. ▇▇▇▇▇▇▇▇▇.▇▇▇ may delay or suspend the
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effectiveness of the Registration Statement or BGI's ability to sell
Shares pursuant to the Registration Statement (referred to herein as a
"postponement") for a reasonable period of time (i) if ▇▇▇▇▇▇▇▇▇.▇▇▇
determines, in its reasonable judgment, that sales of Shares by BGI
thereunder would interfere with any financing, acquisition, corporate
reorganization or other material transaction involving ▇▇▇▇▇▇▇▇▇.▇▇▇ or
any of its Affiliates or would require premature disclosure thereof, or
(ii) because (A) ▇▇▇▇▇▇▇▇▇.▇▇▇ concludes that there exists material
nonpublic information that in ▇▇▇▇▇▇▇▇▇.▇▇▇'s reasonable judgment would
require a prospectus supplement or post-effective amendment to be filed
with the Commission, or (B) ▇▇▇▇▇▇▇▇▇.▇▇▇ concludes that it is
necessary for ▇▇▇▇▇▇▇▇▇.▇▇▇ to supplement the prospectus included in
the Registration Statement or make an appropriate filing under the 1934
Act so as to cause the prospectus to become current, by delivering to
BGI written notice of such postponement; provided, however, that if
▇▇▇▇▇▇▇▇▇.▇▇▇ files any other registration statement (excluding
registration statements on Form S-8) during this postponement period,
the postponement period initiated by such notice shall terminate
immediately. The written notice to BGI need not describe the
circumstances resulting in the delivery of the notice, but shall
include a certification by ▇▇▇▇▇▇▇▇▇.▇▇▇ that ▇▇▇▇▇▇▇▇▇.▇▇▇ has
similarly postponed the use of its other registration statements (other
than Form S-8 registration statements) relating to sales of shares by
stockholders and has taken steps to prohibit sales by its officers and
directors under its ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ compliance program. During any
postponement, ▇▇▇▇▇▇▇▇▇.▇▇▇'s obligation under this Agreement to seek
effectiveness of the Registration Statement or keep such Registration
Statement current or effective shall be deferred. If ▇▇▇▇▇▇▇▇▇.▇▇▇
effects a postponement hereunder, ▇▇▇▇▇▇▇▇▇.▇▇▇ will promptly deliver
notice to BGI of such postponement and will again deliver notice to BGI
when such postponement is no longer necessary (including, without
limitation, if postponements relating to sales of shares by
stockholders pursuant to other registration statements or the steps to
prohibit sales by its officers and directors have been terminated). If
▇▇▇▇▇▇▇▇▇.▇▇▇ effects a postponement hereunder, Homestore will cause
the amendment, supplement or filing to be made as soon as reasonably
practicable thereafter (but shall not be obligated to disclose
prematurely any nonpublic information) and to take other reasonable
steps to terminate the postponement within the times required in this
Agreement.
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(b) Amended or Supplemented Prospectus. BGI agrees
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that, as a condition to the receipt of the registration rights
contained herein, upon receipt of any notice of postponement from
▇▇▇▇▇▇▇▇▇.▇▇▇ described in Section 2.6(a) hereof after it has been
declared effective by the Commission, BGI shall forthwith discontinue
disposition of the Shares until BGI's receipt of copies of a
supplemented or amended prospectus from ▇▇▇▇▇▇▇▇▇.▇▇▇, or until it is
advised in writing by ▇▇▇▇▇▇▇▇▇.▇▇▇ that the use of the prospectus may
be resumed, and has received copies of any additional or supplemental
filings which are incorporated by reference in the prospectus. If so
directed by ▇▇▇▇▇▇▇▇▇.▇▇▇, BGI will deliver to ▇▇▇▇▇▇▇▇▇.▇▇▇ all copies
of the prospectus covering such Shares current at the time of receipt
of such notice of postponement.
(c) Subsequent Offerings. In connection with a firm
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commitment underwritten offering or underwritten Rule 144A offering of
▇▇▇▇▇▇▇▇▇.▇▇▇ securities (a "Subsequent Offering"), if ▇▇▇▇▇▇▇▇▇.▇▇▇
delivers a written notice to BGI of such intended offering and of its
request for BGI to enter into the lock-up agreement described below,
then BGI agrees that it will not sell or otherwise dispose of (or
effect any transaction that transfers the economic risk of ownership
of) any equity securities of ▇▇▇▇▇▇▇▇▇.▇▇▇ that it beneficially owns
for a period commencing with delivery of such notice (provided that
▇▇▇▇▇▇▇▇▇.▇▇▇ is diligently pursuing such offering and that executive
officers and directors of ▇▇▇▇▇▇▇▇▇.▇▇▇ do not sell or otherwise
dispose of any equity securities of ▇▇▇▇▇▇▇▇▇.▇▇▇ during such period)
and terminating 90 days (or such shorter period as ▇▇▇▇▇▇▇▇▇.▇▇▇ or the
managing underwriter requests) following the closing of the Subsequent
Offering, and agrees that it will execute a lock-up agreement in
customary form relating to such restrictions provided that
▇▇▇▇▇▇▇▇▇.▇▇▇'s executive officers and directors also execute a similar
lock-up agreement; provided, however, that the duration of any such
lock-up relating to BGI shall be of the same duration as the shortest
lock-up period applicable to any group of ▇▇▇▇▇▇▇▇▇.▇▇▇'s officers and
directors; and provided further, that such agreement is conditioned
upon the completion of the Subsequent Offering.
2.7 Indemnification.
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(a) Indemnification by ▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇.▇▇▇
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will, and hereby does, indemnify and hold harmless, BGI and its
respective directors, officers, partners, agents and Affiliates and
each other Person who participates as an underwriter in the offering or
sale of the Shares and each other Person, if any, who controls BGI or
any such underwriter within the meaning of the Securities Act, insofar
as losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which the
Shares held by BGI were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading, and
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▇▇▇▇▇▇▇▇▇.▇▇▇ will reimburse BGI and each such director, officer,
partner, agent or Affiliate, underwriter and controlling Person for any
legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, liability, action
or proceeding; provided, that ▇▇▇▇▇▇▇▇▇.▇▇▇ shall not be liable in any
such case to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any
such preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with written
information furnished to ▇▇▇▇▇▇▇▇▇.▇▇▇ through an instrument executed
by or on behalf of BGI or such underwriter, as the case may be,
specifically stating that it is for use in the preparation thereof; and
provided, further, that ▇▇▇▇▇▇▇▇▇.▇▇▇ shall not be liable to any Person
who participates as an underwriter in the offering or sale of the
Shares or any other Person, if any, who controls such underwriter
within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such Person's
failure to send or give a copy of the final prospectus, as the same may
be then supplemented or amended, to the Person asserting an untrue
statement or alleged untrue statement or omission or alleged omission
at or prior to the written confirmation of the sale of the Shares to
such Person if such statement or omission was corrected in such final
prospectus so long as such final prospectus, and any amendments or
supplements thereto, have been furnished to such underwriter. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of BGI or any such underwriter,
director, officer, partner, agent or Affiliate or controlling Person
and shall survive the transfer of such securities by BGI.
(b) Indemnification by BGI. BGI will, and hereby
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does, severally indemnify and hold harmless (in the same manner and to
the same extent as set forth in Section 2.7(a)) ▇▇▇▇▇▇▇▇▇.▇▇▇, and each
director of ▇▇▇▇▇▇▇▇▇.▇▇▇, each officer of ▇▇▇▇▇▇▇▇▇.▇▇▇ and each other
Person, if any, who controls ▇▇▇▇▇▇▇▇▇.▇▇▇ within the meaning of the
Securities Act, with respect to any statement or alleged statement in
or omission or alleged omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished
to ▇▇▇▇▇▇▇▇▇.▇▇▇ through an instrument duly executed by BGI
specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement; provided, however, that
the liability of BGI under this Section 2.7(b) shall be limited to the
amount of proceeds received by BGI in the offering giving rise to such
liability. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of ▇▇▇▇▇▇▇▇▇.▇▇▇
or any such director, officer or controlling Person and shall survive
the transfer of such securities by BGI.
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(c) Notices of Claims, Etc. Promptly after receipt by
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an indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding subdivisions
of this Section 2.7 such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 2.7,
except to the extent that the indemnifying party is actually prejudiced
by such failure to give notice. In case any such action is brought
against an indemnified party, unless the indemnified party has been
reasonably advised by outside counsel that a conflict of interest
exists between such indemnified and indemnifying parties in respect of
such claim, the indemnifying party shall be entitled to participate in
and, to assume the defense thereof, jointly with any other indemnifying
party similarly notified to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense
thereof unless such indemnified party has been reasonably advised by
outside counsel that a conflict of interest between such indemnified
and indemnifying parties arises in respect of such claim after the
assumption of the defense thereof and the indemnified party notifies
the indemnifying party of such indemnified party's judgment and the
basis therefore; provided, however, that the indemnifying party shall
not be liable for the fees and costs of more than one counsel for all
indemnified parties. No indemnifying party shall be liable for any
settlement of any action or proceeding effected without its written
consent, which consent shall not be unreasonably withheld. No
indemnifying party shall, without the written consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect of such claim or litigation.
(d) Contribution. If the indemnification provided for
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in this Section 2.7 shall be judicially determined (by the entry of
final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal)
to be unavailable to a party seeking indemnification under Sections
2.7(a) or 2.7(b) hereof in respect of any loss, claim, damage or
liability, or any action in respect thereof, then, in lieu of the
amount paid or payable under Sections 2.7(a) or 2.7(b) hereof, the
indemnified party and the indemnifying party under Sections 2.7(a) or
2.7(b) hereof shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred
in connection with investigating the same), (i) in such proportion as
is appropriate to reflect the relative fault of ▇▇▇▇▇▇▇▇▇.▇▇▇, on the
one hand, and BGI, on the other hand, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations or (ii) if the allocation provided by clause (i) above
is not permitted by applicable
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law, in such proportion as shall be appropriate to reflect the
relative benefits received by ▇▇▇▇▇▇▇▇▇.▇▇▇, on the one hand, and BGI,
on the other hand, from the offering of the securities covered by such
registration statement. 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. In addition, no
Person shall be obligated to contribute hereunder any amounts in
payment for any settlement of any action or claim effected without
such Person's consent, which consent shall not be unreasonably
withheld.
2.8 Other Indemnification. Indemnification and contribution
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similar to that specified in Section 2.7 (with appropriate
modifications) shall be given by ▇▇▇▇▇▇▇▇▇.▇▇▇, on the one hand, and
BGI, on the other hand, with respect to any required registration or
other qualification of securities under any federal or state law or
regulation of any governmental authority other than the Securities Act.
2.9 Information from BGI. In the event that BGI fails to
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furnish to ▇▇▇▇▇▇▇▇▇.▇▇▇ such information regarding itself, the Shares
or the intended method of disposition of the Shares as may be required
to effect the registration of the Shares, while such failure is
continuing, ▇▇▇▇▇▇▇▇▇.▇▇▇ shall not be obligated to take any action
pursuant to this Agreement with respect to the Shares held by BGI.
2.10 Expenses of Registration. ▇▇▇▇▇▇▇▇▇.▇▇▇ shall pay all
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registration, filing and qualification fees (including Commission
filing fees and the listing fees of the Nasdaq National Market or any
stock exchange on which ▇▇▇▇▇▇▇▇▇.▇▇▇ securities are traded)
attributable to the Shares registered under this Agreement, and any
legal, accounting or other professional fees or expenses incurred by
▇▇▇▇▇▇▇▇▇.▇▇▇ (collectively, "Registration Expenses"). BGI shall pay
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all underwriting discounts, selling commissions and stock transfer
taxes, if any, attributable to the sale of the Shares, as the case may
be, registered by BGI and any legal, accounting or other professional
fees incurred by BGI. ▇▇▇▇▇▇▇▇▇.▇▇▇ shall pay all expenses in
connection with any registration initiated pursuant to Section 2.2
which is withdrawn (pursuant to a written request made with the
Commission pursuant to Rules 477 or 478 of the Securities Act or any
successor rules thereto), delayed or abandoned, except if such
withdrawal, delay or abandonment is a result of: (i) a request by BGI
to withdraw, delay or abandon such registration; (ii) the failure to
comply with the requirements of Section 2.9 hereof by BGI; or (iii) any
withdrawal, delay or abandonment of the registration caused by the
fraud, material misstatement or omission of a material fact by BGI to
be included or required to be included in such registration. If BGI (or
any transferees) sells or disposes of shares pursuant to the
Registration Statement other than in ordinary brokers' transactions (as
defined in Rule 144) and it is necessary to amend the Registration
Statement or file a prospectus supplement to provide additional
information regarding the selling shareholder or the manner of sale of
shares, BGI agrees to reimburse ▇▇▇▇▇▇▇▇▇.▇▇▇ for all reasonable fees
and costs (including attorneys' fees) incurred in preparing and
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filing such amendment or supplement, promptly after submission by
▇▇▇▇▇▇▇▇▇.▇▇▇ of invoices or other documentation in customary form.
2.11 Termination. At such time as BGI is able to sell the
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Shares (a) pursuant to Rule 144(k) under the Securities Act or (b)
after it has satisfied the holding period specified in Rule 144 (d)
under the Securities Act and the Shares could be sold in a three month
period consistent with the volume limitations of Rule 144, or at such
earlier time as all the Shares have been sold by BGI, the registration
rights granted to BGI and the obligations of ▇▇▇▇▇▇▇▇▇.▇▇▇ under this
Article 2 (other than its obligations under Sections 2.1, 2.7, 2.10 and
this Section 2.11) to BGI, shall be of no further force and effect
whatsoever without any further action on the part of ▇▇▇▇▇▇▇▇▇.▇▇▇ or
BGI.
3. Miscellaneous.
-------------
3.1 Counterparts. This Agreement may be executed in any number
------------
of counterparts, via facsimile, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
3.2 Choice of Law. This Agreement, and all the rights and
-------------
duties of the parties arising from or relating in any way to the subject matter
of this Agreement, shall be governed by, construed, and enforced in accordance
with the laws of the State of California (excluding California's conflict of
laws rules which would refer to and apply the substantive laws of another
jurisdiction). The parties hereby agree to submit themselves to the personal
jurisdiction of the courts of Los Angeles, California, which shall be the
exclusive venue for any disputes relating to this Agreement.
3.3 Waiver. No provision in this Agreement shall be deemed
------
waived by course of conduct, unless such waiver is in writing signed by both
parties and stating specifically that it was intended to modify this Agreement.
3.4 Partial Invalidity. Wherever possible, each provision
------------------
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be in effective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
3.5 Unenforceability. If any provision of this Agreement is
----------------
determined by a court of competent jurisdiction to be invalid or otherwise
unenforceable, such determination shall not affect the validity or
unenforceability of any remaining provisions of this Agreement. If any provision
of this Agreement is invalid under any applicable statute or rule of law, it
shall be enforced to the maximum extent possible so as to effect the intent of
the parties, and the remainder of this Agreement and the Agreement shall
continue in full force and effect.
9
3.6 Agreement Construction. Each party has reviewed, and has
----------------------
been represented by counsel in connection with the negotiation of, this
Agreement and no question of construction shall be resolved by any rule of
interpretation providing for interpretation against the drafting party.
3.7 Article Headings. Article and Section headings and
----------------
titles in this Agreement are inserted for convenience of reference only and are
not intended to be a part of or to affect the meaning or interpretation of this
Agreement.
3.8 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties governing the matters addressed herein. No prior
agreement or representation, whether oral or written, shall have any force or
effect thereon.
3.9 Notices. All notices, requests and other communications
-------
hereunder shall be in writing and shall be deemed to have been duly given at the
time of receipt if delivered by hand, one business day after deposit with a
reputable national overnight carrier service for overnight delivery, three days
after being mailed, registered or certified mail, return receipt requested, with
postage prepaid, to the address specified at the beginning of this Agreement, or
one business day after transmission by telecopier with confirmation of receipt
to the facsimile number provided by the other party, or if any Party shall have
designated a different address or facsimile number by notice to the other
Parties given as provided above, then to the last address or facsimile number so
designated.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
BUDGET GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Executive Officer
11
