EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
dated as of July 31, 1998
among
CAPITAL ONE FINANCIAL CORPORATION
and
THE HOLDERS NAMED HEREIN
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 31,
1998 (this "Agreement"), by and among CAPITAL ONE FINANCIAL
CORPORATION, a Delaware corporation ("Parent"), and the Initial
Holders listed on the signature pages hereto (the "Initial
Holders").
This Agreement is made in connection with the
Agreement and Plan of Merger, dated as of July 31, 1998 (the
"Merger Agreement"), by and among Parent, [S-Acquisition Corp.],
a Texas corporation and a wholly-owned subsidiary of Parent (the
"Subsidiary"), Summit Acceptance Corporation, a Texas corporation
("Summit"), and the Initial Holders, pursuant to which, among
other things, (i) the Subsidiary is merging with and into Summit
(the "Merger"), with Summit being the surviving corporation and
thereby becoming a wholly-owned subsidiary of Parent, and (ii)
Parent is issuing to the Initial Holders, in exchange for the
common stock and warrants of Summit, shares (the "Shares") of
Common Stock (as hereinafter defined) which will not be
registered under the Securities Act (as hereinafter defined). In
order to induce Summit and the Initial Holders to enter into the
Merger Agreement, Parent has agreed to provide certain
registration rights with respect to the Shares as set forth in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and
the mutual promises, covenants and agreements of the parties
hereto, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Capitalized terms used
but not defined herein shall have the respective meanings given
to them in the Merger Agreement.
SECTION 1.2. Defined Terms. As used in this Agreement,
the following terms shall have the following meanings:
"Adverse Disclosure" means public disclosure of
material, non-public information, which disclosure, in the
reasonable, good faith judgment of the chief executive officer or
the chief financial officer of Parent, after consultation with
counsel, (i) would be required to be made in any Registration
Statement or filed with the Commission by Parent so that such
Registration Statement would not be materially misleading or so
that such Registration Statement would otherwise comply with the
Securities Act or applicable law; (ii) would not be required to
be made at such time but for the filing of such Registration
Statement; and (iii) Parent has a bona fide business purpose for
not disclosing publicly.
"Agreement" has the meaning set forth in the preamble hereto.
"Commission" means the United States Securities and
Exchange Commission, or any successor thereto.
"Common Stock" means Parent's common stock, par value
$0.01 per share.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and any successor thereto, and any rules and
regulations promulgated thereunder, all as the same shall be in
effect from time to time.
"Filing Date" means the fifth business day following
the date hereof.
"Filing Delay" has the meaning set forth in Section
2.1(c) hereof.
A "holder" or "holders" means any holder or holders of
Registrable Securities (whether or not acquired pursuant to the
Merger Agreement) who is a party hereto or who becomes a party
hereto in accordance with Section 3.3 hereof.
"Indemnified Parties" has the meaning set forth in
Section 2.5(a) hereof.
"Loss" has the meaning set forth in Section 2.5(a)
hereof.
"Merger Agreement" has the meaning set forth in the
recitals hereto.
"Notice" has the meaning set forth in Section 2.1(c)
hereof.
"Parent" has the meaning set forth in the preamble
hereto, and shall include Parent's successors by merger,
acquisition, reorganization or otherwise.
"Person" or "person" means any individual, firm,
limited liability company or partnership, joint venture,
corporation, joint stock company, trust or unincorporated
organization, incorporated or unincorporated association,
government (or any department, agency or political subdivision
thereof) or other entity of any kind, and shall include any
successor (by merger or otherwise) of such entity.
"Prospectus" means the prospectus included in the
Shelf Registration Statement as amended or supplemented by any
prospectus supplement with respect to the terms of the offering
of any portion of the Registrable Securities covered by the Shelf
Registration Statement and all other amendments and supplements
to such prospectus, including post-effective amendments and all
other material incorporated by reference in such prospectus.
"Registrable Securities" means the Shares and any
securities that may be issued or distributed in respect of the
Shares by way of stock dividend, stock split or other
distribution, or by way of merger, consolidation, exchange offer,
recapitalization or reclassification or similar transaction;
provided, however, that any such Registrable
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Securities shall cease to be Registrable Securities to the extent
(i) a Registration Statement with respect to the sale of such
Registrable Securities has been declared effective under the
Securities Act and such Registrable Securities have been
transferred pursuant to such Registration Statement, (ii) such
Registrable Securities have been distributed pursuant to Rule 144
(or any similar provision then in force) under the Securities
Act, or (iii) such Registrable Securities shall have been
otherwise transferred and new certificates for them not bearing a
legend restricting transfer under the Securities Act shall have
been delivered by Parent and such securities may be publicly
resold without registration or qualification of them under the
Securities Act.
"Registration" means a registration of Parent's
securities for sale to the public under a Registration Statement.
"Registration Expenses" has the meaning set forth in
Section 2.4 hereof.
"Registration Statement" means any registration
statement of Parent filed with, or to be filed with, the
Commission under the rules and regulations promulgated under the
Securities Act, including the Prospectus therein and the
amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all
material incorporated by reference in such registration
statement.
"Securities Act" means the Securities Act of 1933, as
amended, and any successor thereto, and any rules and regulations
promulgated thereunder, all as the same shall be in effect from
time to time.
"Shelf Period" has the meaning set forth in Section
2.1(b) hereof.
"Shelf Registration" means a Registration effected
pursuant to Section 2.1 hereof.
"Shelf Registration Statement" means the Registration
Statement of Parent filed with the Commission on Form S-3 (or any
successor form or other appropriate form under the Securities
Act) for an offering to be made on a continuous basis pursuant to
Rule 415 under the Securities Act (or any similar rule that may
be adopted by the Commission) covering the Registrable
Securities.
SECTION 1.3. General Interpretive Principles. Whenever
used in this Agreement, except as otherwise expressly provided or
unless the context otherwise requires, any noun or pronoun shall
be deemed to include the plural as well as the singular and to
cover all genders. Unless otherwise specified, the terms
"hereof," "herein" and similar terms refer to this Agreement as a
whole and references herein to Sections refer to Sections of this
Agreement.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1. Shelf Registration.
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(a) Filing. Subject to Section 2.1(c) hereof, Parent
shall use its reasonable best efforts to file with the Commission
on or before the Filing Date, the Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by
the holders thereof from time to time in accordance with
reasonable and customary methods of distribution elected by such
holders and set forth in such Shelf Registration Statement.
Subject to Section 2.1(c) hereof, Parent shall use its reasonable
best efforts to cause such Shelf Registration Statement to be
declared effective under the Securities Act as soon as reasonably
practicable following such filing.
(b) Continued Effectiveness. Subject to Section 2.1(c)
hereof, so long as permitted by applicable law, Parent shall use
its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the
Prospectus forming a part thereof to be usable by holders until
the earlier of (i) the first anniversary of the date hereof or
(ii) the date as of which all of the Registrable Securities
covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (but in no event
prior to the expiration of any applicable period referred to in
Section 4(3) of the Securities Act and Rule 174 thereunder) (such
period of effectiveness being referred to herein as the "Shelf
Period").
(c) Delay in Filing and Suspension of Registration;
Amendments. (i) If the filing, initial effectiveness or continued
use of the Shelf Registration Statement at any time would require
Parent to make an Adverse Disclosure, Parent may, upon giving
prompt notice (the "Notice") of such action to the holders, delay
the filing or initial effectiveness of the Shelf Registration
Statement (a "Filing Delay") or suspend the use thereof (a "Shelf
Suspension") for a reasonable period of time as determined in
good faith by Parent. Parent shall have no obligation to inform
the holders of the reason for such Filing Delay or Shelf
Suspension other than to inform such holders that such action is
being taken pursuant to this Section 2.1(c), and except as
required by law, the holders and their Affiliates shall not make
any public disclosure regarding, and shall treat as confidential,
any Filing Delay, Shelf Suspension or Notice. In the case of a
Filing Delay, Parent shall promptly notify the holders upon the
termination of such Filing Delay, and Parent shall use its
reasonable best efforts to file the Shelf Registration Statement
with the Commission within two business days of the termination
of such Filing Delay in accordance with the terms hereof or have
the Shelf Registration Statement declared effective as soon as
reasonably practicable following the termination of such Filing
Delay, as the case may be. In the case of a Shelf Suspension, the
holders agree to suspend use of the Prospectus related to the
Shelf Registration in connection with any sale or purchase of or
offer to sell or purchase Registrable Securities upon receipt of
the Notice. Parent shall promptly notify the holders upon the
termination of any Shelf Suspension, promptly amend or supplement
the Shelf Registration Statement following the termination of
such Shelf Suspension, if necessary, so it does not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein in order to make the
statements therein not misleading, and furnish to the holders
such numbers of copies of the Prospectus therein as so amended or
supplemented as the holders may reasonably request. (ii) Parent
agrees, if necessary, to supplement or make amendments to the
Shelf Registration Statement, if required by the registration
form used by Parent for the Shelf Registration Statement or by
the instructions applicable to such registration form or by the
Securities Act.
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(d) Representation of Parent. Parent hereby represents
that it has no actual knowledge of any circumstances existing as
of the date hereof that would reasonably be expected to cause
Parent to implement a Filing Delay or Shelf Suspension.
SECTION 2.2. Registration Procedures.
(a) In connection with Parent's registration
obligations under Section 2.1 hereof, subject to the other
provisions set forth herein, Parent will use its reasonable best
efforts to effect such registration to permit the sale of such
Registrable Securities in accordance with the terms hereof, and
pursuant thereto Parent shall:
(i) prepare and use its reasonable best efforts to
cause the Shelf Registration Statement to become effective
under the Securities Act in accordance with the terms
hereof; provided, however, that Parent may discontinue any
Registration of its securities that are not Registrable
Securities;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Shelf
Registration Statement and supplements to the Prospectus as
may be reasonably necessary to keep such Registration
Statement effective for the Shelf Period;
(iii) notify the holders of Registrable Securities, as
soon as reasonably practicable after notice thereof is
received by Parent (A) when the Shelf Registration
Statement or any amendment thereto has been filed or
becomes effective, and when the Prospectus or any amendment
or supplement to the Prospectus has been filed, (B) of the
receipt of any written comments by the Commission or any
request by the Commission or any other federal, state or
local governmental authority for amendments or supplements
to the Shelf Registration Statement or the Prospectus or
for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness
of the Shelf Registration Statement or any order preventing
or suspending the use of any preliminary or final
Prospectus or the initiation or threatening of any
proceedings for such purposes, and (D) of the receipt by
Parent of any notification with respect to the suspension
of the qualification of the Registrable Securities for
offering or sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(iv) promptly notify each holder of Registrable
Securities when Parent becomes aware of the happening of
any event as a result of which the Shelf Registration
Statement or the Prospectus included in the Shelf
Registration Statement (as then in effect) contains any
untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein (in
the case of the Prospectus and any preliminary Prospectus,
in light of the circumstances under which they were made) not
misleading or, if for any other reason it shall be
necessary during such time period to amend or supplement
the Shelf Registration Statement or the Prospectus in order
to comply with the Securities Act and, in either case as
promptly as reasonably practicable thereafter and except as
otherwise permitted herein, prepare and file with the
Commission
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an amendment or supplement to such Registration
Statement or Prospectus which will correct such statement
or omission or effect such compliance;
(v) use its reasonable best efforts to prevent or
obtain the withdrawal of any stop order or other order
suspending the use of any preliminary or final Prospectus
or suspending any qualification of the Registrable
Securities at the earliest possible moment;
(vi) furnish to each holder of Registrable Securities
as many conformed copies as such holder may reasonably
request of the Shelf Registration Statement and any
amendment or post-effective amendment thereto;
(vii) deliver to each holder of Registrable Securities
as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement
thereto as such holder may reasonably request (it being
understood that Parent consents to the use of the
Prospectus or any amendment or supplement thereto by each
of the holders of Registrable Securities in connection with
the offering and sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto);
(viii) on or prior to the date on which the Shelf
Registration Statement is declared effective, use its
reasonable best efforts to register or qualify, and
cooperate with the holders of Registrable Securities and
their respective counsel in connection with the
registration or qualification of such Registrable
Securities for offer and sale under the securities or "Blue
Sky" laws of each state and other jurisdiction of the
United States and do any and all other acts or things
reasonably necessary or advisable to keep such registration
or qualification in effect for the Shelf Period and so as
to permit the continuance of sales and dealings in such
jurisdictions for as long as may be necessary to complete
the distribution of the Registrable Securities covered by
the Shelf Registration Statement; provided that Parent will
not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take
any action which would subject it to taxation or general
service of process in any such jurisdiction where it is not
then so subject;
(ix) cooperate with the holders of Registrable
Securities to facilitate the timely preparation and
delivery of certificates not bearing any restrictive
legends representing Registrable Securities to be sold
under the Shelf Registration Statement;
(x) not later than the effective date of the Shelf
Registration Statement, provide a CUSIP number for all
Registrable Securities and provide the applicable transfer
agent with printed certificates for the Registrable
Securities which are in a form eligible for deposit with The
Depository Trust Company;
(xi) use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission and make
generally available to its security holders, as soon as
reasonably practicable (but not more than fifteen months)
after the effective date of the Registration Statement, an
earnings statement satisfying the provisions of Section
11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
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(xii) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered
by the Shelf Registration Statement from and after a date
not later than the effective date of the Shelf Registration
Statement; and
(xiii) cause all Registrable Securities covered by the
Shelf Registration Statement to be listed on the primary
securities exchange or inter-dealer quotation system on
which such securities of that type are then listed or
quoted.
(b) Parent may require each seller of Registrable
Securities to furnish to Parent such information regarding the
distribution of such securities and such other information
relating to such holder and its ownership of Registrable
Securities as Parent may from time to time reasonably request.
Each holder of Registrable Securities agrees to furnish such
information to Parent and to cooperate with Parent as reasonably
necessary to enable Parent to comply with the provisions of this
Agreement. Parent shall have the right to exclude any holder that
does not comply with the preceding sentence from the Shelf
Registration Statement and to preclude such holder from selling
Registrable Securities thereunder.
(c) Each holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of
any notice from Parent of the happening of any event of the kind
described in Section 2.2(a)(iv) hereof, such holder shall
forthwith discontinue disposition of Registrable Securities
pursuant to the Shelf Registration Statement until such holder's
receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 2.2(a)(iv) hereof, or until it is advised
in writing by Parent that the use of the Prospectus may be
resumed, and, if so directed by Parent, such holder will deliver
to Parent (at Parent's expense) all copies, other than permanent
file copies then in such holder's possession, of the Prospectus
covering such Registrable Securities current at the time of
receipt of such notice.
SECTION 2.3. Other Agreements. Parent will not
hereafter enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the holders of
Registrable Securities by this Agreement or otherwise conflicts
with the provisions hereof. Notwithstanding the foregoing, the
holders acknowledge and agree that Parent may be a party to or
may enter into other agreements providing for registration rights
which agreements may permit Persons other than the holders to
sell securities of Parent under the Shelf Registration Statement,
provided that no such agreement shall conflict with or limit the
rights of the holders hereunder.
SECTION 2.4. Registration Expenses. All expenses
incurred in connection with Parent's performance of or compliance
with this Agreement will be paid by Parent, including, without
limitation, (i) all registration and filing fees, and any other
fees and expenses associated with filings required to be made
with the Commission, (ii) all fees and expenses of compliance
with state securities or "Blue Sky" laws, (iii) all printing,
duplicating, word processing, messenger, telephone, facsimile and
delivery expenses incurred by Parent (including expenses of
printing certificates for the Registrable Securities in a form
eligible for deposit with The Depository Trust Company and of
printing prospectuses), (iv) all fees and disbursements of
counsel for Parent and of all independent certified public
accountants of Parent, (v) Securities Act liability
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insurance or similar insurance if Parent so desires,
(vi) all fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange
or quotation of the Registrable Securities on any inter-dealer
quotation system (all such expenses being referred to herein as
"Registration Expenses"). Parent will, in any event, pay its
internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or
accounting duties), the expense of any audit and the fees and
expenses of any Person, including special experts, retained by
Parent. Notwithstanding anything to the contrary contained
herein, Parent shall not be required to pay any costs or expenses
incurred by any holder of Registrable Securities in the course of
the transactions contemplated hereby, including, without
limitation, costs and expenses relating to underwriters'
commissions and discounts in respect of Registrable Securities to
be sold by such holder, or brokerage fees, transfer taxes or the
fees or expenses of any counsel, accountants or other
representatives retained by the holders, individually or in the
aggregate.
SECTION 2.5. Indemnification.
(a) Indemnification by Parent. Parent agrees to indemnify
and hold harmless, to the full extent permitted by law, each
holder of Registrable Securities, its Affiliates and their
respective officers, directors and employees and each Person who
controls (within the meaning of the Securities Act or the
Exchange Act) such Persons (collectively, the "Indemnified
Parties"), from and against any and all losses, claims, damages,
liabilities (or actions or proceedings in respect thereof,
whether or not such Indemnified Party is a party thereto) and
expenses, joint or several (including reasonable costs of
investigation and reasonable attorneys' fees) (each, a "Loss" and
collectively "Losses"), arising out of or based upon (i) any
untrue or alleged untrue statement of a material fact contained
in the Shelf Registration Statement under which such Registrable
Securities were registered under the Securities Act (including
any final, preliminary or summary Prospectus contained therein or
any amendment thereof or supplement thereto or any documents
incorporated by reference therein), or (ii) any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in
the case of any final, preliminary, or summary Prospectus
contained therein, in light of the circumstances under which they
were made) not misleading; provided, however, that Parent shall
not be liable to any Indemnified Party in any such case to the
extent that any such Loss arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement in
reliance upon and in conformity with written information
furnished to Parent by such holder of Registrable Securities
expressly for use in the preparation thereof; and provided,
further, that Parent will not be liable to any Indemnified Party
in any case to the extent that any such Loss arises out of or is
based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in any final, preliminary or
summary Prospectus if such untrue statement or alleged untrue
statement or omission or alleged omission is corrected in an
amendment or supplement to such Prospectus which has been made
available to such holder and the relevant holder of Registrable
Securities fails to deliver such Prospectus as so amended or
supplemented, if such delivery is required under applicable law
or the applicable rules of any securities exchange, prior to or
concurrently with the sales of the Registrable Securities to the
Person asserting such loss, claim, damage, liability or expense.
This indemnity shall be in addition to any liability Parent may
otherwise
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have. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such
holder or any Indemnified Party and shall survive the transfer of
such securities by such holder.
(b) Indemnification by the Selling Holder of
Registrable Securities. Each holder of Registrable Securities
agrees (severally and not jointly) to indemnify and hold
harmless, to the full extent permitted by law, Parent, its
Affiliates and their respective directors, officers and
employees, and each Person who controls such Persons (within the
meaning of the Securities Act and the Exchange Act), from and
against any Losses resulting from (i) any untrue statement of a
material fact or any omission of a material fact required to be
stated in the Shelf Registration Statement (including any final,
preliminary or summary Prospectus contained therein or any
amendment thereof or supplement thereto or any documents
incorporated by reference therein), or necessary to make the
statements therein (in the case of any final, preliminary or
summary Prospectus contained therein, in light of the
circumstances under which they were made) not misleading, to the
extent, but only to the extent, that such untrue statement or
omission is contained in any written information furnished by
such holder to Parent specifically for inclusion in the Shelf
Registration Statement or (ii) any untrue statement or alleged
untrue statement or omission or alleged omission made in any
final, preliminary or summary Prospectus if such untrue statement
or alleged untrue statement or omission or alleged omission is
corrected in an amendment or supplement to such Prospectus which
has been made available to such holder and such holder fails to
deliver such Prospectus as so amended or supplemented, if such
delivery is required under applicable law or the applicable rules
of any securities exchange, prior to or concurrently with a sale
of the Registrable Securities. This indemnity shall be in
addition to any liability such holder may otherwise have. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of Parent or any indemnified
party. The liability of each holder under the indemnity set forth
in this Section 2.5(b) shall be limited to the amount of proceeds
received by such holder in connection with sales of Registrable
Securities pursuant to the Shelf Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party;
provided, however, that any Person entitled to indemnification
hereunder shall have the right to select and employ separate
counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such
Person unless (i) the indemnifying party has agreed in writing to
pay such fees or expenses, (ii) the indemnifying party shall have
failed to assume the defense of such claim within a reasonable
time after receipt of notice of such claim from the Person
entitled to indemnification hereunder and employ counsel
reasonably satisfactory to such Person, or (iii) in the
reasonable judgment of any such Person, based upon
advice of its counsel, a conflict of interest may exist between
such Person and the indemnifying party with respect to such
claims (in which case, if the Person notifies the indemnifying
party in writing that such Person elects to employ separate
counsel at the expense of the indemnifying party, the
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indemnifying party shall not have the right to assume the defense
of such claim on behalf of such Person). If such defense is not
assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without
its consent, which shall not be unreasonably withheld; provided,
that an indemnifying party shall not be required to consent to
any settlement involving the imposition of equitable remedies on
such indemnifying party or involving the imposition of any
material obligations on such indemnifying party other than
financial obligations for which such indemnified party will be
indemnified hereunder. If the indemnifying party assumes the
defense, the indemnifying party shall have the right to settle
such action without the consent of the indemnified party;
provided, however, that the indemnifying party shall be required
to obtain such consent (which shall not be unreasonably withheld)
if the settlement includes any admission of wrongdoing on the
part of the indemnified party or any decree or restriction on the
indemnified party or its officers or directors. No indemnifying
party shall 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 the
indemnified party of an unconditional release from all liability
in respect to such claim or litigation. It is understood that the
indemnifying party or parties shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges
of more than one separate law firm admitted to practice in such
jurisdiction at any one time for all such indemnified parties
unless (x) the employment of more than one counsel has been
authorized in writing by the indemnifying party or parties, or
(y) a conflict or potential conflict exists or may exist (based
on advice of counsel to an indemnified party) between such
indemnified party and the other indemnified parties, in each of
which cases the indemnifying party shall be obligated to pay the
reasonable fees and expenses of such additional counsel or
counsels.
(d) Contribution. If for any reason the
indemnification provided for in the paragraphs (a) and (b) of
this Section 2.5 is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by paragraphs
(a) and (b) of this Section 2.5, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified
party as a result of such Loss in such proportion as is
appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying
party or the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties hereto
agree that it would not be just and equitable if contribution
pursuant to this Section 2.5(d) were determined by pro rata
allocation or by any other method of allocation that does not
take account of the equitable considerations referred to above in
this paragraph. 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. If indemnification is
available under this Section 2.5, the indemnifying parties shall
indemnify each indemnified party to the full extent provided
in Sections 2.5(a) and 2.5(b) hereof without regard to the
relative fault of said indemnifying parties or indemnified party.
SECTION 2.6. Rules 144 and 144A. Parent covenants that
it will use its reasonable best efforts to timely file the
reports required to be filed by it under the Securities Act
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and the Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, if Parent is not required to file such
reports, it will, upon the request of any holder of Registrable
Securities, make publicly available other information so long as
necessary to permit sales of Registrable Securities pursuant to
Rule 144 or Rule 144A under the Securities Act, provided that
Parent shall not be required to make any Adverse Disclosure), and
it will take such further action as any holder of Registrable
Securities may reasonably request (including providing a written
acknowledgment to such holder that it has timely filed all such
reports), all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 or Rule 144A, as such Rules may be
amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the Commission.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Term. This Agreement shall terminate upon
the expiration of the Shelf Period, except for the provisions of
Sections 2.5, 2.6 and 3.4 hereof, which shall survive any such
termination; provided, that the provisions set forth in Section
2.6 hereof shall terminate two years after the date hereof.
Following the expiration of the Shelf Period, Parent shall have
the right to terminate the effectiveness of the Shelf
Registration Statement and the holders shall return to Parent all
copies of the Shelf Registration Statement and copies of any
final, preliminary or summary Prospectus contained therein (other
than permanent file copies).
SECTION 3.2. Notices. All notices, other
communications or documents provided for or permitted to be given
hereunder, shall be made in writing and shall be given either
personally by hand-delivery, by facsimile transmission, by
mailing the same in a sealed envelope, registered first-class
mail, postage prepaid, return receipt requested, or by air
courier guaranteeing overnight delivery:
if to Parent or Sub:
Capital One Financial Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with an additional copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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if to the Company or any of the Stock Sellers:
Summit Acceptance Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with additional copies to:
G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ III
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Tower
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Capital Resources Lenders III, L.P.:
Capital Resource Lenders III, L.P.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with an additional copy to:
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
High Street Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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if to Lincoln National Life Insurance Company
or Lincoln National Income Fund, L.P.:
c/o Lincoln Investment Management, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investments/Private Placements
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to ▇.▇. ▇▇▇▇▇▇ Capital Corporation or
Sixty Wall Street Fund, L.P.:
▇/▇ ▇.▇. ▇▇▇▇▇▇ & ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with an additional copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Each holder, by written notice given to Parent in
accordance with this Section 3.2 may change the address to which
notices, other communications or documents are to be sent to such
holder. All notices, other communications or documents shall be
deemed to have been duly given: (i) at the time delivered by hand,
if personally delivered; (ii) upon transmission, if by facsimile
transmission; (iii) five business days after being deposited in
the mail, postage prepaid, if mailed by first class mail; and
(iv) on the first business day with respect to which a reputable
air courier guarantees delivery; provided, however, that notices
of a change of address shall be effective only upon receipt.
SECTION 3.3. Successors, Assigns and Transferees. (a)
The registration rights of any holder under this Agreement with
respect to any Registrable Securities may be transferred and
assigned; provided, that no such assignment shall be binding upon
or obligate Parent to any such assignee unless and until (i)
Parent shall have received an agreement in writing from such
assignee pursuant to which such assignee agrees to be bound by
the terms hereof and the terms of Section 9.6 of the Merger
Agreement, or such assignee, by the terms of the assignment, is
bound by such terms, and (ii) unless such assignee is already a
holder of Registrable Securities or such assignee is a partner of
a holder that is a partnership that has made a distribution of
Registrable Securities to the partners thereof, such assignee
acquires Registrable Securities with an estimated market value of
$1 million or more or, if less, all of the Registrable Securities
held by the assignor thereof; provided, that an assignor shall
notify Parent of any proposed assignment no less than three
business days prior to such assignment; and provided, further,
that in connection
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with any assignment the assignor shall provide to Parent all
information relating to any assignee that Parent may reasonably
request in connection with Parent's obligations under this
Agreement. Any transfer or assignment made other than as provided
in the first sentence of this Section 3.3 shall be null and void.
(b) This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, and their respective
successors and permitted assigns.
SECTION 3.4. Governing Law; Service of Process;
Consent to Jurisdiction; Waiver of Jury Trial. (a) This Agreement
shall be governed by, and construed in accordance with, the laws
of the State of New York, without reference to the conflicts of
laws rules thereof.
(b) To the fullest extent permitted by applicable law,
each party hereto (i) agrees that any claim, action or proceeding
by such party seeking any relief whatsoever arising out of, or in
connection with, this Agreement or the transactions contemplated
hereby shall be brought only in the United States District Court
for the Eastern District of Virginia and in any Virginia state
court located in the Eastern District of Virginia and not in any
other state or Federal court in the United States of America or
any court in any other country, (ii) agrees to submit to the
exclusive jurisdiction of such courts located in the Commonwealth
of Virginia for purposes of all legal proceedings arising out of,
or in connection with, this Agreement or the transactions
contemplated hereby, (iii) irrevocably waives any objection which
it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an
inconvenient forum, and (iv) irrevocably waives the right to
trial by jury in any claim, action or proceeding by such party
seeking any relief whatsoever arising out of, or in connection
with, this Agreement or the transactions contemplated hereby.
SECTION 3.5. Headings. The section and paragraph
headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or
interpretation of this Agreement.
SECTION 3.6. Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected
in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
SECTION 3.7. Amendment; Waiver.
(a) This Agreement may not be amended or modified
except by an instrument or instruments in writing making specific
reference to this Agreement and signed by Parent and each of the
holders of Registrable
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Securities then outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound
by any amendment, modification, waiver or consent authorized by
this Section 3.7(a), whether or not such Registrable Securities
shall have been marked accordingly.
(b) The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as
a further or continuing waiver of such breach or as a waiver of
any other or subsequent breach. Except as otherwise expressly
provided herein, no failure on the part of any party to exercise,
and no delay in exercising, any right, power or remedy hereunder,
or otherwise available in respect hereof at law or in equity,
shall operate as a waiver thereof, nor shall any single or
partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
SECTION 3.8. Counterparts. This Agreement may be
executed in any number of separate counterparts and by the
parties hereto in separate counterparts each of which when so
executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused
this instrument to be duly executed as of the date first written
above.
CAPITAL ONE FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
INITIAL HOLDERS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ III
----------------------------------
G ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ III, as
Trustee of the G.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ III Management Trust
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee
of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. 1990
Qualified Subchapter S Trust
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
as Trustee of the ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1997 Trust
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee
of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇. 1994 Trust
16
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of the
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1994 Trust
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee
of the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
1990 Qualified Subchapter S Trust
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of the
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1990 Qualified
Subchapter S Trust
CAPITAL RESOURCE LENDERS III, L.P.
By: Capital Resource Partners III,
L.L.C. its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Member
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: Lincoln Investment Management, Inc.
its Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
LINCOLN NATIONAL INCOME FUND, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
17
▇.▇. ▇▇▇▇▇▇ CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
SIXTY WALL STREET FUND, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
18