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EXHIBIT 2.2
E-LOAN, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is effective as of
September 17, 1999 by and among E-Loan, Inc. (the "Company"), Banc of America
Auto Finance Corp. ("Bank of America"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and the
persons and entities named on the signature page hereof (the "Non-bank
Stockholders").
Pursuant to that certain Agreement and Plan of Reorganization dated
August 23, 1999 (the "Stock Exchange Agreement"), the Company agreed to issue to
Bank of America, ▇▇▇▇▇▇ and the Non-bank Stockholders a total of 2,880,000
shares of the Common Stock of the Company and in connection therewith to enter
into this Agreement.
1. Registration Rights.
1.1 Definitions. For purposes of this Section 1:
(a) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means the Common Stock
issued to the Holders pursuant to the Stock Exchange Agreement and any Common
Stock of the Company 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 for or in replacement of, such
Common Stock, excluding in all cases, however, (i) any Registrable Securities
sold by a person in a transaction in which such person's rights under this
Section 1 are not assigned, or (ii) any Registrable Securities sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are issuable pursuant to then exercisable or convertible
securities which are, Registrable Securities;
(d) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.13 hereof;
(e) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the Securities and Exchange Commission (the "SEC") which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC; and
(f) The term "Act" shall mean the Securities Act of 1933, as
amended.
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(g) The term "Closing Date" shall have the meaning ascribed
in the Stock Exchange Agreement.
1.2 Request for Registration.
(a) If the Company shall receive on a date between six (6)
months and eighteen (18) months after the Closing Date, a written request from
Holders of at least 50% of the Registrable Securities then outstanding that the
Company file a registration statement under the Act covering the registration of
Registrable Securities in a firm commitment underwritten offering having an
aggregate offering price in excess of $5,000,000, then the Company shall, within
ten (10) days of the receipt thereof, give written notice of such request to all
Holders and shall, subject to the limitations of this Section 1.2(a), as soon as
practicable and in any event within 90 days of the receipt of such request, file
a registration statement to effect the registration under the Act of up to 50%
of the Registrable Securities issued to each Holder pursuant to the Stock
Exchange Agreement as requested to be registered within twenty (20) days of the
giving of such written notice by the Company; provided, however, that if the
Registrable Securities of any Holder shall have been included in a Company
registration pursuant to Section 1.3(a) effected during the period commencing
six months and ending eighteen months after the Closing Date, the amount of
Registrable Securities of such Holder that may be included in a registration
pursuant to this Section 1(a) shall be reduced by such amount so registered
pursuant to Section 1.3(a); and provided further that the Company shall not be
obligated to take any action to effect any such registration, qualification or
compliance pursuant to this Section 1.2(a):
(i) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of, and ending on the date
120 days immediately following the effective date of, any registration statement
pertaining to securities of the Company (other than a registration of securities
in a Rule 145 transaction or with respect to an employee benefit plan), provided
that the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective;
(ii) After the Company has effected one such
registration pursuant to this Section 1.2(a), and such registration has been
declared or ordered effective; or
(iii) If the Company shall furnish to such Holders a
certificate signed by the Chairman of the Board of the Company stating that in
the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for a registration statement to
be filed at such time, then the Company's obligation to use its best efforts to
register, qualify or comply under this Section 1.2(a) shall be deferred for a
period not to exceed 120 days from the date of receipt of written request from
the Holders; provided, however, that the Company may not utilize this right more
than once in any twelve-month period.
(b) Beginning eighteen (18) months after the Closing Date,
if the Company shall receive a written request from Holders of at least 50% of
the Registrable Securities then outstanding that the Company file a registration
statement under the Act covering the registration of Registrable Securities in a
firm commitment underwritten offering having an aggregate offering price in
excess of $5,000,000, then the Company shall, within ten (10) days of the
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receipt thereof, give written notice of such request to all Holders and shall,
subject to the limitations of this Section 1.2(b), as soon as practicable and in
any event within 90 days of the receipt of such request, file a registration
statement to effect the registration under the Act of all Registrable Securities
that each Holder shall have requested to be registered within twenty (20) days
of the giving of such written notice by the Company; provided, however, that the
Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 1.2(b):
(i)During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of, and ending on the date
120 days immediately following the effective date of, any registration statement
pertaining to securities of the Company (other than a registration of securities
in a Rule 145 transaction or with respect to an employee benefit plan), provided
that the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective;
(ii) After the Company has effected one such
registration pursuant to this Section 1.2(b), and such registration has been
declared or ordered effective; or
(iii) If the Company shall furnish to such Holders a
certificate signed by the Chairman of the Board of the Company stating that in
the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for a registration statement to
be filed at such time, then the Company's obligation to use its best efforts to
register, qualify or comply under this Section 1.2(b) shall be deferred for a
period not to exceed 120 days from the date of receipt of written request from
the Holders; provided, however, that the Company may not utilize this right more
than once in any twelve-month period.
1.3 Company Registration.
(a) Beginning six (6) months after the Closing Date, if (but
without any obligation to do so) the Company proposes to register (including for
this purpose a registration effected by the Company for stockholders other than
the Holders) any of its stock or other securities under the Act in connection
with the public offering of such securities solely for cash (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan), the Company shall, at such time, promptly give each Holder
written notice of such registration. Upon the written request of each Holder
given within twenty (20) days after mailing of written notice by the Company,
the Company shall, subject to the provisions of Section 1.8 and the Company's
right to delay or withdraw at any time for any reason a registration under this
Section 1.3, cause to be registered under the Act up to 50% of the Registrable
Securities issued to each Holder as such Holder has requested to be registered;
provided however, that if the Registrable Securities of any Holder shall have
been included in a Company registration statement pursuant to Section 1.2(a)
effected during the period commencing six months and ending eighteen months
after the Closing Date, the amount of Registrable Securities of such Holder that
may be included in a registration statement pursuant to this Section 1.3(a)
shall be reduced by such amount so registered pursuant to Section 1.2(a).
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(b) Beginning eighteen (18) months after the Closing Date,
if (but without any obligation to do so) the Company proposes to register
(including for this purpose a registration effected by the Company for
stockholders other than the Holders) any of its stock or other securities under
the Act in connection with the public offering of such securities solely for
cash (other than a registration relating solely to the sale of securities to
participants in a Company stock plan), the Company shall, at such time, promptly
give each Holder written notice of such registration. Upon the written request
of each Holder given within twenty (20) days after mailing of written notice by
the Company, the Company shall, subject to the provisions of Section 1.8 and the
Company's right to delay or withdraw at any time for any reason a registration
under this Section 1.3, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered.
1.4 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) Enter into and perform its obligations under an
underwriting agreement, in usual and customary form (including customary market
stand-off provisions applicable to the issuer), with the managing underwriter of
such offering. Each Holder participating in such underwriting shall also enter
into and perform its obligations under such an agreement provided that such
underwriting agreement shall not provide for indemnification or contribution
obligations on the part of the holders greater than the obligations set forth in
Section 1.10(b).
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such
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registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing, or otherwise fails to comply with the requirements
of the Act and the rules and regulations promulgated thereunder. The Company
shall, promptly upon the happening of any such event, provide each such Holder
with revised prospectuses correcting any such untrue statement or omission or
failure to comply.
(g) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 1, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 1, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters.
1.5 Furnish Information. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities.
1.6 Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions incurred in connection with the
registration, filing or qualification pursuant to Section 1.2, including all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the selling Holders shall be borne by the
Company; provided, however, that the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 1.2 if the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (in which case all
participating Holders shall bear such expenses), unless the Holders of a
majority of the Registrable Securities agree to forfeit their right to a demand
registration pursuant to Section 1.2; provided further, however, that if at the
time of such withdrawal, the Holders have learned of a material adverse change
in the condition, business, or prospects of the Company from that known to the
Holders at the time of their request, then the Holders shall not be required to
pay any of such expenses and shall retain their rights pursuant to Section 1.2.
1.7 Expenses of Company Registration. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.13), including all registration, filing, and qualification fees,
printers and accounting fees relating or apportionable thereto and the fees and
disbursements of one
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counsel for the selling Holders selected by them, but excluding underwriting
discounts and commissions relating to Registrable Securities.
1.8 Underwriting Requirements.
(a) The right of any Holder to registration pursuant to this
Section 1 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company as
provided in Section 1.4(e)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company; provided that such underwriting agreement shall not provide for
indemnification or contribution obligations on the part of the Holders greater
than the obligations set forth in Section 1.10(b).
(b) In any registration pursuant to Section 1.2, if the
total amount of securities, including Registrable Securities, to be included in
such offering exceeds the amount of securities that the underwriters reasonably
believe to be compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, that the underwriters believe will
not jeopardize the success of the offering (the securities so included to be
allocated among the Holders in proportion (as nearly as practicable) to the
amount of Registrable Securities owned by each selling Holder. Allocations of
any shares to sold by the Company or any other selling stockholders shall be
determined as they may separately agree.
(c) In any registration pursuant to a request by other
stockholders who have registration rights under any other registration rights
agreement of the Company ("Requesting Stockholders") other than the Holders, if
the total amount of securities, including Registrable Securities, to be included
in such offering exceeds the amount of securities that the underwriters
reasonably believe to be compatible with the success of the offering, then the
Company shall be required to include in the offering only that number of such
securities, including Registrable Securities, that the underwriters believe will
not jeopardize the success of the offering (the securities so included to be
allocated among the selling stockholders in proportion (as nearly as
practicable) to the amount of Registrable Securities owned by each selling
stockholder; provided, however, that the Requesting Stockholders shall have the
first right to include all of their shares in the offering before any shares
held by the Company or the Holders or other stockholders are included).
(d) In any registration pursuant to Section 1.3, if the
total amount of securities, including Registrable Securities, to be included in
such offering exceeds the amount of securities that the underwriters reasonably
believe to be compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, that the underwriters believe will
not jeopardize the success of the offering (the securities so included to be
allocated among the selling stockholders in proportion (as nearly as
practicable) to the amount of Registrable Securities owned by each selling
stockholder; provided, however, that the Company shall have the first right to
include all of the shares it intends to register in the offering before any
shares held by the Holders or Requesting Stockholders or other selling
stockholders are included; and provided further that the Holders and Requesting
Stockholders
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shall have the right to include all of their shares in the offering before any
shares held by other stockholders are included).
(e) For purposes of apportionment, any selling stockholder
which is a Holder or Requesting Stockholder and which is a partnership or
corporation, the affiliated partnerships, partners, retired partners and
stockholders of such Holder or Requesting Stockholder, or the estates and family
members of any such partners and retired partners and any trusts for the benefit
of any of the foregoing persons shall be deemed to be a single "selling
stockholder," and any pro rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling stockholder," as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the Securities Exchange Act of 1934, amended
(the "1934 Act"), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Act, the 1934
Act, any state securities law or any rule or regulation promulgated under the
Act, the 1934 Act or any state securities law; and the Company will pay to each
such Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this Section 1.10(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, underwriter or
controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any
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underwriter, any other Holder selling securities in such registration statement
and any controlling person of any such underwriter or other selling Holder,
against any losses, claims, damages, or liabilities (joint or several) to which
any of the foregoing persons may become subject, under the Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will pay any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this Section 1.10(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Section 1.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this Section
1.10(b) exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.10, but the omission to so deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
1.10.
(d) If the indemnification provided for in Section 1.10 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, that in no
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event shall any contribution by a Holder hereunder exceed the net proceeds from
the offering received by such Holder.
(e) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times after ninety (90)
days after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration.
1.12 Assignment of Registration Rights. The rights to cause
the Company to register Registrable Securities pursuant to this Section 1 may be
assigned by a Holder to a transferee or assignee who acquires at least 1,000,000
shares of Registrable Securities, provided the Company is, within a reasonable
time after such transfer, furnished with written notice of the name and address
of such transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act. Notwithstanding the above, such rights may be assigned
by a Holder to a limited partner, general partner, affiliated partnership,
former partner, majority owned subsidiary or parent or other affiliate of an
Investor (the "Transferee") regardless of the number of shares acquired by such
Transferee. For purposes of determining the number of shares of Registrable
Securities held by a transferee or assignee, the holdings of transferees and
assignees of a partnership who are partners or retired partners of such
partnership (including spouses and ancestors, lineal descendants and siblings of
such partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) shall be aggregated together and with the partnership;
provided that all assignees, and transferees who would not qualify individually
for assignment of registration rights shall have a single attorney-in-fact for
the purpose of exercising any rights, receiving notices or taking any action
under this Section 1.
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1.13 Limitations on Subsequent Registration Rights. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of at least a majority of the outstanding
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company which would allow such holder or
prospective holder to include such securities in any registration filed under
Section 1.2 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of his securities will not reduce the amount of
the Registrable Securities of the Holders which is included.
1.14 "Market Stand-Off" Agreement. Each holder of securities
which are or at one time were Registrable Securities hereby agrees that, during
a period not to exceed 180 days, following the effective date of a registration
statement of the Company filed under the Act, it shall not, to the extent
requested by the Company or such underwriter, sell or otherwise transfer or
dispose of (other than to a donee who agrees to be similarly bound) or otherwise
reduce its risk of ownership of any Common Stock of the Company held by it at
any time during such period except Common Stock included in such registration.
The Holder agrees, if requested, to enter into a separate agreement with the
underwriter to the foregoing effect. In order to enforce the foregoing covenant,
the Company may impose stop-transfer instructions with respect to the
Registrable Securities of each Holder (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such period.
The provisions of this Section 1.14 shall not be binding on any Holder unless,
if requested by the underwriter, all officers and directors and all persons
selling shares in the offering enter into similar agreements.
1.15 Termination of Registration Rights. No Holder shall be
entitled to exercise any right provided for in this Section 1 when all
Registrable Securities can be sold in any three month period under Rule 144.
2. Miscellaneous Provisions.
2.1 Waivers and Amendments. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
at least a majority of the shares of Registrable Securities. Any amendment or
waiver effected in accordance with this Section 2.1 shall be binding upon each
person or entity which are granted certain rights under this Agreement and the
Company.
2.2 Notices. All notices and other communications required or
permitted hereunder shall be in writing and, except as otherwise noted herein,
shall be deemed effectively given upon personal delivery, delivery by nationally
recognized courier or five business days after deposit with the United States
Post Office (by first class mail, postage prepaid), addressed: (a) if to the
Company, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (or at such other
address as the Company shall have furnished to the Investors in writing)
attention of President and (b) if to a Holder, at the latest address of such
person shown on the Company's records.
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2.3 Descriptive Headings. The descriptive headings herein have
been inserted for convenience only and shall not be deemed to limit or otherwise
affect the construction of any provisions hereof.
2.4 Governing Law. This Agreement shall be governed by and
interpreted under the laws of the State of California as applied to agreements
among California residents, made and to be performed entirely within the State
of California.
2.5 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same instrument, but only one of
which need be produced.
2.6 Expenses. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
2.7 Successors and Assigns. Except as otherwise expressly
provided in this Agreement, this Agreement shall benefit and bind the
successors, assigns, heirs, executors and administrators of the parties to this
Agreement.
2.8 Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter of this Agreement.
2.9 Separability; Severability. Unless expressly provided in
this Agreement, the rights of each Investor under this Agreement are several
rights, not rights jointly held with any other Investors. Any invalidity,
illegality or limitation on the enforceability of this Agreement with respect to
any Investor shall not affect the validity, legality or enforceability of this
Agreement with respect to the other Investors. If any provision of this
Agreement is judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not be
affected or impaired.
2.10 Stock Splits. All references to numbers of shares in this
Agreement shall be appropriately adjusted to reflect any stock dividend, split,
combination or other recapitalization of shares by the Company occurring after
the date of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first set forth above.
COMPANY:
E-LOAN, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Title: VP Business Development & Sales
HOLDERS:
BANC OF AMERICA AUTO FINANCE CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITAN LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Managing Director
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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