EXHIBIT 6.3
REGISTRATION RIGHTS AGREEMENT
by and among
EASY MONEY HOLDING CORPORATION
and
THE HOLDERS LISTED HEREIN
Dated as of December 18, 1997
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I Definitions .......................................................1
ARTICLE II Registration Rights...............................................3
SECTION 2.1 Registration on Demand...................................3
SECTION 2.2 Incidental Registration..................................4
SECTION 2.3 Registration Procedures..................................5
SECTION 2.4 Expenses.................................................9
SECTION 2.5 Marketing Registrations..................................9
SECTION 2.6 Termination of Rights ...................................10
SECTION 2.7.Rule 144.................................................10
SECTION 2.8 Indemnification..........................................11
SECTION 2.9 Agreements of Holders of Registrable Securities..........14
ARTICLE III Changes in Common Stock..........................................15
ARTICLE IV Representations and Warranties of the Company.....................15
ARTICLE V Benefits of Agreement .............................................16
ARTICLE VI Miscellaneous.....................................................16
SECTION 6.1 Notices .................................................17
SECTION 6.2 Waivers; Amendments .....................................17
SECTION 6.3 Governing Law ...........................................17
SECTION 6.4 Survival of Agreements; Representations
and Warranties, etc....................................17
SECTION 6.5 Covenants to Bind Successors and Assigns.................17
SECTION 6.6 Severability.............................................18
SECTION 6.7 Section Headings.........................................18
SECTION 6.8 Counterparts.............................................18
SECTION 6.9 Termination..............................................18
SECTION 6.10 Complete Agreement......................................18
SECTION 6.11 No More Favorable Agreements............................18
SECTION 6.12 Submission to Jurisdiction; Venue.......................18
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
December 18,1997, is made and entered into by and among EASY MONEY HOLDING
CORPORATION, a Virginia corporation (the "Company"), Love Savings Holding
Company ("LSHC") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") (collectively, together with the
successors and assigns of each, the "Holder" or "Holders") of the Warrants (as
defined herein).
WHEREAS, concurrently with the issuance of the Warrants, the
Company is entering into this Agreement to define the rights that exist among
the Holders, on the one hand, and the Company, on the other, with respect to the
registration of the Common Stock (as defined herein) into which the Warrants are
exercisable;
NOW, THEREFORE, in consideration of the mutual premises,
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
Definitions
-----------
For purposes of this Agreement, terms defined herein shall have
the following respective meanings (each such meaning to be equally applicable to
the singular and plural forms thereof), terms not defined herein have the
meaning assigned to them in the Warrant and Warrant Agreement or in the Credit
Agreement, each of even date herewith:
"Agreement" means this Registration Rights Agreement.
"Commission" shall mean the Securities and Exchange Commission,
and any successor agency of the federal government at the time
administering the Securities Act or the Securities Exchange Act.
"Common Stock" means the Company's voting and non-voting Common
Stock, par value $0.01 per share, and any stock into which such Common
Stock may hereafter be changed or for which such Common Stock may be
exchanged after giving effect to the terms of such change or exchange
(by way of reorganization, recapitalization, merger, consolidation or
otherwise) and shall also include any Common Stock of the Company
hereafter authorized which has ordinary voting power for the election of
directors and any capital stock of the Company of any other class
hereafter authorized which is not preferred as to dividends or
distribution of assets in liquidation over any other class of capital
stock of the Company or which has ordinary voting power for the election
of directors of the Company.
"Company" has the meaning assigned such term in the preamble
hereto.
1
"Holder" or "Holders" has the meaning assigned such term in the
preamble hereto.
"Holder(s) of Registrable Securities" shall mean a person who
owns Registrable Securities or has the right to acquire such Registrable
Securities, whether or not such acquisition has actually been effected
and disregarding any legal restrictions upon the exercise of such right.
"NASD" means the National Association of Securities Dealers, Inc.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering, registering for sale any of the
Registrable Securities and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material
incorporated by reference in such Prospectus.
"Registrable Securities" means any Common Stock which may be
acquired upon exercise of the Warrants in accordance with their terms;
provided that any security's status as a Registrable Security shall cease
when the registration rights with respect to such security shall have
terminated pursuant to Section 2.6.
"Registration Statement" means any registration statement of the
Company which registers for sale any of the Registrable Securities
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such Registration Statement.
"Rule 144" means Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the
time.
"Securities Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"Trigger Date" means (A) the earlier to occur of (i) the first
Qualified Equity Financing of the Company, which includes a Bona Fide
Initial Public Offering or other sale, issuance, transfer or disposition
of any stock of the Company or any other equity securities of the
Company, or non-equity securities of the Company that are convertible
into, exchangeable for or evidence the right to subscribe for any such
equity securities, (ii) conversion by the Company from its status as an
"S corporation" to a "C corporation," or (iii) the expiration of the
thirtieth (30th) full calendar month after the date of this Warrant and
(B) no later than 5:00 p.m., Eastern Standard Time, six months after the
date of a Bona Fide Initial Public Offering.
2
"Warrants" means the warrants to purchase an aggregate of
1,161,000 shares of Common Stock issued by the Company to the Holders.
ARTICLE II
Registration Rights
-------------------
SECTION 2.1 Registration on Demand.
----------------------
2.1.1 Demand. At any time following the Trigger Date, upon the
written request (the "Demand") of any of the Holders that the Company effect the
registration under the Securities Act of the number of Registrable Securities
specified by such Holders, the Company shall, subject to the provisions hereof,
use its best efforts to effect, as soon as practicable and in any event within
120 days after the Demand is received from such Holders, the registration under
the Securities Act of the Registrable Securities which the Company has been
requested to register by such Holders. The Company agrees to keep effective such
registration statement for a period that will terminate when all Registrable
Securities covered by such registration statement, as amended from time to time,
have been sold.
2.1.2 Shelf Registration. At any time that the Company is
eligible to use a short-form registration statement for registering securities
for sale to the public at large, the Company shall register all Registrable
Securities of the Holders pursuant to Rule 415 under the Securities Act (the
"Shelf Registration"). The Company agrees to keep effective such registration
statement (the "Shelf Registration Statement") until all the Registrable
Securities under the Shelf Registration Statement have been disposed of in the
manner described in such registration statement.
2.1.3 Registration Statement Form. Registrations under this
Section 2.1 shall be on such appropriate registration form of the Commission as
shall be selected by the Company. The Company shall include in any such
registration statement all information which, in the opinion of counsel to the
Company and the Holders of Registrable Securities included in such registration
statement, is required to be included.
2.1.4 Effective Registration Statement. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective, (ii)
if, after it has become effective, such registration is interfered with by any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to the Holders and
has not thereafter become effective, (iii) if the conditions to closing
specified in the underwriting agreement, if any, entered into in connection with
such registration are not satisfied or waived, other than by reason of a failure
on the part of the Holders, (iv) if a Shelf Registration Statement, such
registration statement has not been kept effective until all of the Registrable
Securities under such Shelf Registration Statement have been disposed of in the
manner described in such registration statement, or (v) if the Registrable
Securities under such registration statement are not listed or quoted on the
principal stock exchange on which similar securities issued by the Company are
then listed or quoted.
2.1.5 Limitations on Registration on Demand, Shelf Registrations.
The Company shall not be required to prepare and file a Registration Statement
pursuant to this Section 2.1 if,
3
within the prior 90 days, the Company has filed with the Commission a
Registration Statement that afforded the Holders the opportunity to include
Registrable Securities in such registration pursuant to Section 2.2.
Notwithstanding anything in this Section 2.1 to the contrary, each Holder shall
be entitled to demand no more than three registrations of the Registrable
Securities; provided, however, that any Holder may request that the Registrable
Securities held by such Holder be included in a registration triggered by
another Holder (and the Company shall include such Registrable Securities in
such registration) and such request shall not be counted for purposes of the
requests for registration to which such Holder is entitled.
2.1.6 Holders' Ability to Withdraw Registration Statement. The
Holders of a majority of the Registrable Securities to be included in such
registration (exclusive of Registrable Securities included pursuant to Section
2.2) shall have the right to request that the Company not have a registration
statement filed pursuant to a Demand declared effective.
2.1.7 Selection of Underwriter. If a registration under this
Section 2.1 is an underwritten offering, the Holders of a majority of the
Registrable Securities to be included in such registration shall have the right
to select a managing underwriter or underwriters reasonably acceptable to the
Company to administer the offering.
2.1.8 Registration of Other Securities. A registration statement
filed pursuant to the request of a Holder pursuant to this Section 2.1 may not
include other securities of the Company other than Registrable Securities
without the consent of the Holders making the demand.
2.1.9 Suspension. The Company may delay, suspend or withdraw the
registration of the Registrable Securities required pursuant to this Section 2.1
for a period not exceeding 90 days if the Company shall in good faith determine
that any such registration would require the Company to include disclosure that
would reasonably be expected to have a seriously detrimental effect on any
proposal, negotiations or plans by the Company or any of its subsidiaries to
engage in any acquisition or disposition of assets or any merger, consolidation,
tender offer, reorganization or similar transaction, or any other material
corporate event contemplated by the Company; provided, that the Company may
exercise this right only once in any 180 day period; and provided further, in
the event the Company exercises this right, the Holders making such demand
pursuant to this Section 2.1 will be entitled to withdraw such request and, if
such request is withdrawn, such demand will not count as a request for purposes
of the limitation on demands in Section 2.1.5.
SECTION 2.2 Incidental Registration. If the Company, at any time
or any one or more occasions after the date of this Agreement, proposes to
register (other than pursuant to Section 2. 1) any of its equity securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (other than pursuant to
registrations on Form S-4 or Form S-8 or any successor form or other forms not
available for registering securities for sale to the public at large), the
Company shall give not less than 30 days' nor more than 90 days' prior written
notice to each Holder of Registrable Securities of its intention to do so. Upon
the written request of any Holder of Registrable Securities given within 20 days
after receipt of such notice from the Company, the Company will use its best
efforts to cause the Registrable Securities requested to be registered to be so
registered under the Securities Act. A request pursuant to this Section 2.2
shall state the number of Registrable Securities requested to be registered and
the intended method of distribution thereof. In connection with any registration
subject to this Section
4
2.2, the Holders shall enter into such underwriting, lockup and other
agreements, and shall execute and complete such questionnaires and other
documents, as are customary in a secondary offering, provided that in no event
shall a Holder of Registrable Securities be subject to a limitation or sale or
distribution that is larger than that to which any other security holder whose
securities are included on the registration is subject to. The Company shall
have the right to terminate or withdraw any registration initiated by it under
this Section 2.2 prior to the effectiveness of such registration whether or not
any Holder has elected to include any securities in such registration.
Notwithstanding any other provision of this Agreement, if the representative of
the underwriters advises the Company in writing that marketing factors require a
limitation on the number of shares to be underwritten, the number of shares to
be included in the underwriting or registration shall be allocated as set forth
in Section 2.5 hereof. If adverse tax consequences to the Holders might result
from exercise of the Warrants and the subsequent sale of the Registrable
Securities acquired pursuant to the Warrants, the Company will use its best
efforts to cause any underwriter of any underwritten registration to purchase or
exercise such Warrants or portion thereof as may be proferred by the Holders
thereof so that the holder may sell the Warrants or a portion thereof.
No registration effected under this Section 2.2 shall relieve the
Company of its obligation to effect the registration required under Section 2.1.
SECTION 2.3 Registration Procedures. In connection with the
registration of Registrable Securities, the Company shall effect such
registrations to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) prepare and file with the Commission within the time limits
prescribed herein a Registration Statement with respect to such
securities and use its best efforts to cause such Registration Statement
to become effective and to remain continuously effective as provided
herein;
(b) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be
necessary and use its best efforts to keep such Registration Statement
continuously effective; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act, the Securities Exchange Act and the rules and
regulations of the Commission promulgated thereunder applicable to it
with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented; the Company shall not be deemed to have used its best
efforts to keep a registration statement effective during a period if it
voluntarily takes any action that results in participating Holders not
being able to sell such Registrable Securities during such period,
unless such action is required under applicable law.
(c) notify the Holders of Registrable Securities and
underwriters, if any, promptly (but in any event within two business
days), and confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective amendment,
when the same has become effective, (ii) of any request by the Commission
for amendments or
5
supplements to the Registration Statement or Prospectus or for additional
information, (iii) of the issuance (or, to the Company's best knowledge,
the threat or contemplation) by the Commission of any stop order
suspending the effectiveness of such Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or
the initiation of any proceedings for that purpose, and (iv) of the
receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of a Registration
Statement or any of the Registrable Securities for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose;
(d) use every reasonable effort to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, and, if any such order is
issued, to obtain the withdrawal of any such order at the earliest
possible moment;
(e) furnish to each seller copies of the Registration Statement
and any amendment thereto, including financial statements and schedules,
all documents incorporated by reference and all exhibits (including those
incorporated by reference) and furnish to each seller and to each duly
authorized broker or underwriter of each seller such number of authorized
copies of a Prospectus, including copies of a preliminary Prospectus, in
conformity with the requirements of the Securities Act, and such other
customary documents as such seller, broker or underwriter may reasonably
request in order to facilitate the public sale or other disposition of
the Registrable Securities owned by such seller;
(f) use its best efforts to register or qualify (and to keep each
such registration and qualification effective, including through new
filings, renewals or amendments, during the period such registration
statement is required to be kept effective) the securities covered by
such Registration Statement under such securities or blue sky laws of
such jurisdictions as each seller shall reasonably request, and do any
and all other reasonable acts and things which may be necessary under
such securities or blue sky laws to enable such seller to consummate the
public sale or other disposition in such jurisdictions of the Registrable
Securities to be sold by such seller, except that the Company shall not
for any such purpose be required to qualify to do business as a foreign
corporation, or to consent to the jurisdiction of any court or subject
itself to suit in any jurisdiction wherein it is not qualified;
(g) before filing the Registration Statement or Prospectus or
amendments or supplements thereto, furnish to counsel for the Holders of
Registrable Securities included in such Registration Statement copies of
all such documents proposed to be filed, all of which shall be subject to
the review, comment and approval of such counsel in the exercise of their
reasonable judgment;
(h) use its best efforts to cause such Registrable Securities
covered by such Registration Statement to be registered with or approved
by such other governmental agencies or authorities exercising
jurisdiction over the Company as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable
Securities;
6
(i) notify each seller of any such Registrable Securities covered
by such Registration Statement, at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act, of the
Company's becoming aware that the Prospectus included in such
Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and, at
the written request of any such seller, promptly prepare and furnish to
such seller and each underwriter a reasonable number of copies of a
Prospectus supplemented or amended so that, as thereafter delivered to
the purchasers of such Registrable Securities, such Prospectus shall not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(j) comply with all applicable rules and regulations of the
Commission, take such other actions as may be reasonably necessary to
facilitate the registration or the disposition of the Registrable
Securities, and make generally available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of
at least twelve consecutive months beginning with the first day of the
Company's first calendar quarter after the effective date of the
Registration Statement, which earnings statement shall satisfy the
provisions of Section 11 (a) of the Securities Act and Rule 158
thereunder;
(k) use its best efforts to cause all such Registrable Securities
covered by such Registration Statement to be listed or quoted on the
principal securities exchange (including NASDAQ) on which similar
securities issued by the Company are then listed or quoted;
(1) provide a transfer agent and registrar for all such
Registrable Securities covered by such Registration Statement not later
than the effective date of such Registration Statement;
(m) cooperate with the selling holders of Registrable Securities
and the underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates shall not bear any restrictive legends; and enable
such Registrable Securities to be in such denominations and registered in
such names as the underwriters, if any, or Holders may reasonably request
at least two business days prior to any sale of Registrable Securities in
a firm commitment underwritten public offering, or at least ten business
days prior to any other such sale;
(n) enter into such reasonable and customary agreements
(including an underwriting agreement in customary form) and take such
other reasonable and customary actions as the Holders of the majority of
the Registrable Securities to be included in such registration or as any
underwriters shall reasonably request in order to expedite or facilitate
the registration and disposition of such Registrable Securities;
(o) obtain and furnish to each seller of Registrable Securities
an opinion from the Company's counsel and a "cold comfort" letter from
the Company's independent public accountants in customary form and
covering such matters as are customarily covered by such opinions and
"cold comfort" letters;
7
(p) upon execution and delivery of such confidentiality
agreements as the Company shall reasonably request (which agreement shall
not restrict any such person's obligations under applicable securities
laws), make available for inspection by any seller of such Registrable
Securities covered by such Registration Statement, by any underwriter
participating in any disposition to be effected pursuant to such
Registration Statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, pertinent financial
and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
Registration Statement, all as necessary to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; and
(q) permit any Holder of Registrable Securities which Holder, in
the sole reasonable judgment of such Holder, exercised in good faith,
might be deemed to be a controlling person of the Company to participate
through counsel in the preparation of such Registration Statement and, if
specifically requested by such counsel, in discussions between the
Company and the Commission or its staff with respect to such Registration
Statement, to require the insertion therein of material, furnished in
writing, which in the written opinion of such counsel is necessary to
include in order to avoid a likelihood of potential liability for any
such Holder of Registrable Securities or such counsel.
If any such Registration Statement refers to any Holder by name
or otherwise as the holder of any securities of the Company, then such Holder
shall have the right to require (i) the insertion therein of language, in form
and substance satisfactory to such Holder, to the effect that the holding by
such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such Holder by name or otherwise is not in the judgment
of the Company, as advised by counsel, required by the Securities Act or any
similar federal statute or any state "blue sky" or securities law then in force,
the deletion of the reference to such Holder.
SECTION 2.4 Expenses. All expenses incurred in effecting the
registrations (whether or not such registrations are consummated) provided for
in this Article II, including without limitation all registration and filing
fees, printing expenses, fees and disbursements of counsel for the Company,
expenses of any audits incident to or required by any such registration
(including the costs of any comfort letter) and expenses of complying with the
securities or blue sky laws of any jurisdictions pursuant to Subsection 2.3(f)
hereof, the costs and expenses associated with the filing required to be made by
the NASD (including, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel as may be required by the rules and
regulations of the NASD, provided such fees and expenses are not paid by the
underwriter), transfer taxes, fees of transfer agents and registrars, costs of
insurance (but excluding underwriting discounts and commissions to the extent
they relate to Registrable Securities), duplicating fees, delivery expenses,
expenses incurred with the listing of the securities on any securities exchange,
shall be paid by the Company, and the Company shall pay all reasonable fees and
disbursements of one counsel for the Holders of Registrable Securities for the
performance of the normal and customary functions of counsel for selling
shareholders in each such registration.
8
SECTION 2.5 Marketing Registrations. If (i) any Holder of
Registrable Securities requests registration of Registrable Securities under
Section 2.2, (ii) the offering proposed to be made is to be an underwritten
public offering and (iii) the managing underwriters of such public offering
furnish a written opinion that the total amount of securities to be included in
such offering would exceed the maximum amount of securities (the "Maximum
Amount") (as specified in such opinion) which can be marketed at a price
reasonably related to the then-current market value of such securities and
without materially and adversely affecting such offering, then the rights of the
Company, the Holders of Registrable Securities and the holders of other
securities having the right to include such securities in such registration to
participate in such offering shall be as follows:
If such registration shall have been proposed by the Company,
(i) the Company shall be entitled to participate in such registration
first; (ii) then Holders of Registrable Securities under this Agreement
shall be entitled to participate in such registration (pro rata based on
the number of Registrable Securities or shares of Common Stock,
respectively, held by each) and (iii) then other security holders of the
Company shall be entitled to participate in such registration (pro rata
based on the number of securities held by each security holder and in
accordance with the relative priorities, if any, as shall exist among
them). If such registration shall have been requested by the holders of
other securities pursuant to a right granted by the Company to request
such registration, (i) the holders requesting such registration and the
Holders of Registrable Securities shall be entitled to participate in
accordance with the number of shares held by them (pro rata based on the
number of Registrable Securities or shares of Common Stock respectively,
held by each); and (ii) then the Company will be entitled to participate
in such registration; and no securities (issued or unissued) other than
those registered and included in the underwritten offering shall be
offered for sale or other disposition in a transaction which would
require registration under the Securities Act (but excluding any
issuance of shares pursuant to registrations on Form S-4 or Form S-8 or
any successor form or other forms not available for registering capital
stock for sale to the public at large) until the expiration of 30 days
after the effective date of the Registration Statement in which
Registrable Securities were included pursuant to Section 2.2 or such
shorter period as may be acceptable to the Company and the Holders of a
majority of the Registrable Securities who may be participating in such
offering.
SECTION 2.6 Termination of Rights. Notwithstanding the foregoing
provisions of this Article II, the rights to registration shall terminate as to
any particular Registrable Securities when (a) a Registration Statement covering
such Registrable Securities has been declared effective and such Registrable
Securities have been disposed of in accordance with such effective Registration
Statement, (b) written opinion(s), to the effect that such Registrable
Securities may be sold without registration pursuant to Rule 144(k) under the
Securities Act and applicable state law shall have been received from counsel
for the Company, (c) the Warrants expire unexercised or are otherwise terminated
or (d) such Registrable Securities have been sold through a broker, dealer or
underwriter in a public distribution or a public securities transaction in which
the transferee receives a certificate without a restrictive legend.
SECTION 2.7 Rule 144. The Company shall file the reports required
to be filed by it under the Securities Act and the Securities Exchange Act and
the rules and regulations promulgated thereunder (or, if the Company is not
required to file such reports, it will, upon the written request of
9
any Holder of Registrable Securities as soon as practicable, make publicly
available other information so long as such information is necessary to permit
sales under Rule 144), and will take such further actions as any Holder of
Registrable Securities may reasonably request, 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 exemption
provided by Rule 144. Upon-1he request of any Holder of Registrable Securities,
the Company shall deliver to such Holder a written statement as to whether it
has complied with such requirements.
SECTION 2.8 Indemnification.
---------------
(a) In the event of any registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the
Company will, and hereby does, indemnify and hold harmless, to the
fullest extent permitted by law, the seller of any Registrable
Securities covered by such Registration Statement, its directors and
officers or general and limited partners (and the directors and officers
thereof) and employees (each, a "Person"), each person who participates
as an underwriter or qualified independent underwriter/pricer
("independent underwriter"), if any, in the offering or sale of such
securities, each officer, director, employee, or partner of such
underwriter or independent underwriter, and each other Person, if any,
who controls such seller or any such underwriter within the meaning of
the Securities Act, against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including fees of counsel
and any amounts paid in any settlement approved by the Company (which
such approval shall not be unreasonably withheld or delayed)) to which
such seller, any such director or officer or general or limited partner
or employee or any such underwriter or independent underwriter, such
officer, director or partner or employee of such underwriter or
independent underwriter or controlling person may become subject under
the Securities Act, common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof), or expenses arise out of or
are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement under which such
securities were registered under the Securities Act or 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, (ii)
any untrue statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary Prospectus (together with
the documents incorporated by reference or filed with the Commission) and
any amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (iii) any
violation by the Company of any federal or state law, rule or regulation
applicable to the Company and relating to any such registration, and the
Company will reimburse, as incurred, such seller and each such director,
officer, employee, general or limited partner, underwriter, independent
underwriter, director, or officer, employee or partner of such
underwriter or independent underwriter and controlling person for any
legal or any other expenses incurred by any of them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided, that the Company shall not be liable to any such
seller or any such director, officer, employee, general or limited
partner, underwriter, independent underwriter, director or officer,
employee or partner of such underwriter or independent underwriter or
controlling person in any such case to the extent that any such loss,
claim,
10
damage, liability (or action or proceeding, whether commenced or
threatened, in respect thereof) or expense arises out of or is based upon
(i) any untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement or amendment thereof
or supplement thereto or in any such preliminary, final or summary
Prospectus in reliance upon and in conformity with information furnished
to the Company in writing by or on behalf of any such seller or any such
director, officer, employee, general or limited partner, underwriter,
independent underwriter, director or officer, employee or partner of such
underwriter or independent underwriter or controlling person, expressly
for use in the preparation thereof or (ii) the failure of any such seller
or any such director, officer, general or limited partner, underwriter,
independent underwriter or controlling person, to comply with any legal
requirement applicable to him to deliver a copy of a Prospectus or any
supplements or amendments thereto after the Company has made such
documents available to such Persons. Such indemnity and reimbursement of
expenses shall remain in full force and effect following the transfer of
such securities by such seller.
(b) The Company, as a condition to including any Registrable
Securities in any Registration Statement filed in accordance with this
Agreement, shall have received an undertaking reasonably satisfactory to
it from the prospective seller of such Registrable Securities and any
underwriter or independent underwriter, to indemnify and hold harmless
(in the same manner and to the same extent as set forth in paragraph (a)
of this Section 2.8) the Company and its directors and officers and each
Person who controls the Company (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, final
or summary Prospectus contained therein, or any amendment or supplement
thereto, if such statement or alleged statement or omission or
information has been furnished in writing to the Company or its
representative by or on behalf of such seller or underwriter expressly
for inclusion in such Registration Statement, preliminary, final or
summary Prospectus or amendment or supplement and such statement or
alleged statement or omission or information was substantially relied
upon by the Company in preparation of such Registration Statement,
preliminary, final summary or Prospectus contained therein, or any
amendment or supplement thereto; provided, however, that the aggregate
amount which any such seller or prospective seller shall be required to
pay pursuant to such undertaking shall be limited to the amount of the
net proceeds received by such Person upon the sale of the Registrable
Securities pursuant to the Registration Statement giving rise to such
claim. Such indemnity shall remain in full force and effect following the
transfer of such securities by such seller. This Subparagraph (b) is not
an indemnification.
(c) As soon as possible after receipt by an indemnified party
hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 2.8, 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, 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 paragraphs of this Section 2.8, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the
extent
11
that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably satisfactory
to the indemnified party; provided, that the indemnifying party shall not
be entitled to so participate or so assume the defense if, in the
indemnified party's reasonable judgment, a conflict of interest between
the indemnified party and the indemnifying party exists or may exist in
respect of such claim. After notice from the indemnifying party to such
identified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified
party under this Section 2.8 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
unless the indemnifying party has failed to assume the defense of such
claim or to employ counsel reasonably satisfactory to such indemnified
party; provided that the indemnified parties shall have the right to
employ one counsel (in each case together with appropriate local counsel)
(such counsel to be selected by the Holders of a majority of the
Registrable Securities included in such registration) to represent such
indemnified parties if, in such indemnified parties' reasonable judgment,
a conflict of interest between the indemnified parties and the
indemnifying parties exists or may exist in respect of such claim, and in
that event the fees and expenses of such separate counsel shall be paid
as incurred by the indemnifying party; and provided further that if, in
the reasonable judgment of any of the indemnified parties, a conflict of
interest between such indemnified parties, and any other indemnified
parties exists in respect of such claim, such indemnified parties shall
be entitled to additional counsel or counsels and the indemnifying party
shall be obligated to pay the fees and expenses of such additional
counsel or counsels. No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimants or plaintiffs to
such indemnified party of an unconditional release from all liability in
respect to such claim or litigation. No indemnifying party will be liable
for any settlement effected without its prior written consent, which
consent will not be unreasonably withheld or delayed.
(d) Indemnification similar to that specified in the preceding
paragraphs of this Section 2.8 (with appropriate modifications) shall be
given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities
under any state securities and "blue sky" laws.
(e) If the indemnification provided for in this Section 2.8 is
unavailable or insufficient to hold harmless an indemnified party under
Section 2.8(a) of this Agreement, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
Section 2.8(a) 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 hand in connection with statements and
omissions which resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or other
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 statements or omission. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 2.8(e) were to be determined by
pro rata allocation or
12
by any other method of allocation which does not take account of the
equitable considerations referred to in the first sentence of this
Section 2.8(e). The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first
sentence of this Section 2.8(e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating and defending any action or claim (which
shall be limited as provided in Section 2.8(c) if the indemnifying party
has assumed the defense of any such action in accordance with the
provisions thereof) which is the subject of this Section 2.8(e). 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.
Promptly after receipt by an indemnified party under this Section 2.8(e)
of notice of the commencement of any action against such party in respect
of which a claim for contribution may be made against an indemnifying
party under this Section 2.8(e), such indemnified party shall notify the
indemnifying party in writing of the commencement thereof if the notice
specified in Section 2.8(c) has not been given with respect to such
action; provided that the omission so to notify the indemnifying party
shall not relieve the indemnifying party from any liability which it may
have to any indemnified party otherwise under this Section 2.8(e), except
to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. Notwithstanding anything in this Section 2.8(e)
to the contrary, no indemnifying party (other than the Company) shall be
required pursuant to this Section 2.8(e) to contribute any amount in
excess of the proceeds received by such indemnifying party from the sale
of Registrable Securities in the offering to which the losses, claims,
damages or liabilities of the indemnified parties relate.
(f) The provisions of this Section 2.8 shall be in addition to
any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
in full force and effect following the transfer of the Registrable
Securities by any such party.
SECTION 2.9 Agreements of Holders of Registrable Securities
-----------------------------------------------
(a) Each Holder of Registrable Securities shall advise the
Company of the dates on which any disposition of Common Stock hereunder
is expected to commence and terminate, the number of Registrable
Securities expected to be sold, the method of disposition, and such
other information as the Company may reasonably request in order to
supplement the Prospectus in accordance with the rules and regulations
of the Commission.
(b) Each Holder of Registrable Securities agrees by acquisition
of such Registrable Securities that, upon receipt of a notice from the
Company under Section 2.3(i) of the Company's becoming aware that the
Prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, such Holder shall not dispose of, sell or
offer for sale, Registrable Securities under the Registration Statement
until such Holder receives (i) copies of the supplemented or amended
Prospectus or until counsel for the Company shall have determined that
such disclosure is not required due to subsequent events, (ii) notice in
writing (the "Advice") from the Company that the use of the Prospectus
13
may be resumed, and (iii) copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus.
(c) If so directed by the Company in connection with a notice
under Section 2.3(i), each Holder of Registrable Securities will deliver
to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities that was current
immediately prior to the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of the Registration Statement set forth in this Article II
shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the
date when each selling Holder of Registrable Securities covered by the
Registration Statement shall have received the copies of the
supplemented or amended Prospectus, the Advice and any additional or
supplemental filings that are incorporated by reference in the
Prospectus.
ARTICLE III
Changes in Common Stock
-----------------------
If, and as often as, there is any change in the Common stock by
way of a combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the Registrable
Securities as so changed.
ARTICLE IV
Representations and Warranties of the Company
---------------------------------------------
The Company represents and wan-ants to the Holders of the
Registrable Securities as of the date of this Agreement as follows:
(a) Due Authorization. The execution, delivery and performance of
this Agreement by the Company has been duly authorized by all requisite
action.
(b) Binding Obligation. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding
obligation of the Company enforceable against it in accordance with its
terms.
(c) No Violation. The execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated herein,
by the Company does not violate any provision of law, any order of any
court or other agency of government, any organizational document of the
Company or any provision of any material indenture, agreement or other
instrument to which the Company or any of its properties or assets is
bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture,
agreement or other instrument or result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever upon any
14
of the properties or assets of the Company which violation, conflict,
breach or default or lien, charge, restriction or encumbrance would have
a material adverse effect on the business, condition (financial or
otherwise) of the Company taken as a whole.
(d) Government Action. No action has been taken and no statute,
rule or regulation or order has been enacted, no injunction, restraining
order or order of any nature has been issued by a federal or state court
of competent jurisdiction and no action, suit or proceeding is pending
against or affecting or threatened against, the Company before any court
or arbitrator or any governmental body, agency or official which, if
adversely determined, would in any manner draw into question the
validity of this Agreement. Other than filings required with the
Commission and under state securities laws, no action or approval by, or
filing or registration with, any court or governmental agency or body is
required for the consummation of the transactions contemplated by this
Agreement by the Company.
ARTICLE V
Benefits of Agreement
---------------------
The obligations of the Company under this Agreement shall inure
to the benefit of, and be enforceable by, the initial Holders and the respective
successors and permitted assigns of each without any further action on the part
of any party hereto.
ARTICLE VI
Miscellaneous
-------------
SECTION 6.1 Notices. All notices, requests, consents and other
communications provided for herein shall be in writing and shall be effective
upon delivery in person, faxed or telecopied, or mailed by certified or
registered mail, return receipt requested, postage pre-paid, addressed as
follows:
(i) If to the Company, Easy Money Holding Corporation, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇; with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Harbor Place, Suite D,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
(ii) If to an initial Holder, Love Savings Holding Company, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and to ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, 219 Steeplechase, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, with copies to ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of
Registrable Securities) or to the Holders of Registrable Securities (in
the case of the Company) in accordance with the provisions of this
paragraph.
15
SECTION 6.2 Waivers, Amendments. No failure or delay of any
Holder of Registrable Securities or the Company in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
such Holder and the Company are cumulative and not exclusive of any rights or
remedies which it would otherwise have. The provisions of this Agreement may be
amended, modified or waived with (and only with) the written consent of the
Company and each of the Holders of Registrable Securities outstanding (exclusive
of Registrable Securities then owned by the Company or any Subsidiary thereof).
No notice or demand on the Company in any case shall entitle the Company to any
other or further notice or demand in similar or other circumstances.
SECTION 6.3 Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Missouri without regard
to principles of conflicts of law.
SECTION 6.4 Survival of Agreements; Representations and
Warranties, etc. All warranties, representations and covenants made by the
Company herein or in any certificate or other instrument delivered by it or on
its behalf in connection with this Agreement shall be considered to have been
relied upon by the Holders of Registrable Securities and shall continue in full
force and effect so long as this Agreement is in effect regardless of any
investigation made by such Holders. All statements in any such certificate or
other instrument shall constitute representations and warranties hereunder.
SECTION 6.5 Covenants to Bind Successors and Assigns. All the
covenants, stipulations, promises and agreements in this Agreement contained by
or on behalf of the parties hereto shall bind their successors and assigns,
whether so expressed or not.
SECTION 6.6 Severability. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 6.7 Section Headings. The section headings used herein
are for convenience of reference only, are not part of this Agreement and are
not to affect the construction of or be taken into consideration in interpreting
this Agreement.
SECTION 6.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. A facsimile of the
signature of any party hereto shall be deemed an original signature of the
executing party for purposes of this Agreement.
SECTION 6.9 Termination. The obligations of the Company to
register the Registrable Securities hereunder shall terminate in accordance with
the terms of this Agreement.
16
SECTION 6.10 Complete Agreement. This document and the documents
referred to herein contain the complete agreement between the parties and
supersede any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related to the subject matter
hereof in any way, and any other agreements or understandings as to securities
registration or similar rights among the parities hereto are hereby terminated.
SECTION 6.11 No More Favorable Agreements. The Company has not
previously, and will not hereafter, enter into any agreement with respect to its
securities with any person which grants such person rights that are, taken as a
whole, more favorable than the rights granted to Holders in this Agreement.
SECTION 6.12 Submission to Jurisdiction, Venue.
----------------------------------
(a) Any legal action or proceeding with respect to this Agreement
may be brought in the courts of the State of Missouri located in St.
Louis County or the City of St. Louis or of the United States for the
Eastern District of Missouri, and, by execution and delivery of this
Agreement, the Company hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts. The Company hereby
waives personal service of any and all process upon it and consents that
all such service of process may be made by registered mail (return
receipt requested) directed to Company at its address set forth in
Section 6.1 and service so made shall be deemed to be completed five (5)
days after the same shall have been deposited in the U.S. mails. Nothing
herein shall affect the right of the Holders to serve process in any
other manner permitted by law or to commence legal proceedings or
otherwise proceed against Company in any other jurisdiction.
(b) The Company hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this
Agreement brought in the courts referred to in clause (a) above and
hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.
IN WITNESS WHEREOF, the Parties hereto have entered into this
Agreement as of the date first set forth above.
EASY MONEY HOLDING CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
HOLDERS:
LOVE SAVINGS HOLDING COMPANY
/s/ ▇▇▇▇▇▇ ▇. Love
17
Chairman of the Board
/s/ WILLLA.M ▇. ▇▇▇▇▇, Separate Property
18