Exhibit 4.1
▇▇▇▇▇▇ LEASING CORPORATION
SECOND AMENDED AND RESTATED REGISTRATION AGREEMENT
This SECOND AMENDED AND RESTATED REGISTRATION AGREEMENT is made as of
April 7, 2000, by and among ▇▇▇▇▇▇ Leasing Corporation, a Delaware corporation
(the "Company"), Primus Capital Fund IV Limited Partnership, a Delaware limited
partnership ("PCF IV"), Primus Executive Fund Limited Partnership, a Delaware
limited partnership ("PEF"), Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., a Delaware
corporation ("DMG"), ING (U.S.) Capital LLC, a Delaware limited liability
company ("ING") and Wachovia Capital Investments, Inc., a Georgia corporation
("Wachovia"). Unless otherwise provided in this Agreement, capitalized terms
used herein shall have the meanings set forth in paragraph 8 hereof.
WHEREAS, (i) PCF IV and PEF have heretofore purchased shares of the
Company's Class A Convertible Preferred Stock, par value $0.01 per share (the
"Class A Preferred"), and shares of the Company's Class B Convertible Preferred
Stock, par value $0.01 per share (the "Class B Preferred"), pursuant to a
purchase agreement among PCF IV, PEF and the Company dated as of February 25,
1998 (the "1998 Purchase Agreement"), (ii) the Company has heretofore issued the
DMG Warrant (as defined herein) to DMG and (iii) in connection therewith, among
other things, the Company, PCF IV, PEF and DMG entered into a Registration
Agreement dated as of February 25, 1998 (the "Original Agreement");
WHEREAS, (i) PCF IV, PEF and ING have heretofore purchased shares of the
Company's Class C Convertible Preferred Stock, par value $0.01 per share (the
"Class C Preferred"), pursuant to a purchase agreement among PCF IV, PEF, ING
and the Company dated as of March 30, 1999 (the "1999 Purchase Agreement"), (ii)
the Company has heretofore issued the ING Warrant (as defined herein) to ING and
(iii) in connection therewith, among other things, the Company, PCF IV, PEF and
DMG entered into a Registration Agreement dated as of March 30, 1999 (the
"Amended and Restated Agreement");
WHEREAS, the Company and Wachovia are parties to a certain purchase
agreement dated as of the date hereof (the "Wachovia Note Purchase Agreement")
whereby the Company will issue a 11.0% senior subordinated note (or notes issued
in accordance with the Wachovia Note Purchase Agreement) in the aggregate
principal amount of $5,000,000 due March 30, 2006 and in connection therewith
will issue a warrant (or warrants issued in accordance with the Warrant
Agreement) (collectively, the "Wachovia Warrant") to purchase a certain number
of shares of Class A Common pursuant to the Wachovia Note Purchase Agreement and
a Warrant Agreement dated as of the date hereof by and between the Company and
Wachovia;
WHEREAS, the Company, PCF IV, PEF, DMG, ING and Wachovia desire that this
Agreement supersede, replace, amend and restate the Amended and Restated
Agreement in its entirety; and
WHEREAS, the execution and delivery of this Agreement is a condition to
the Closing under the Wachovia Note Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree to amend and
restate the Amended and Restated Agreement as follows:
The parties hereto hereby agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after the Company has completed
a public offering of its Class A Common under the Securities Act, the holders of
a majority of the Investor Registrable Securities and the holders of a majority
of the Warrant Registrable Securities may each request registration under the
Securities Act of all or any portion of their Registrable Securities on Form S-1
or any similar long-form registration ("Long-Form Registrations"), and the
holders of a majority of the Investor Registrable Securities and the holders of
a majority of the Warrant Registrable Securities may each request registration
under the Securities Act of all or any portion of their Registrable Securities
on Form S-2 or S-3 or any similar short-form registration ("Short-Form
Registrations") if available. All registrations requested pursuant to this
paragraph 1(a) are referred to herein as "Demand Registrations." Each request
for a Demand Registration shall specify the approximate number of Registrable
Securities requested to be registered and the anticipated per share price range
for such offering. Within ten days after receipt of any such request, the
Company shall give written notice of such requested registration to all other
holders of Registrable Securities and shall, subject to paragraph 1(d) below,
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
(b) Long-Form Registrations. The holders of Investor Registrable
Securities shall be entitled to request (i) two Long-Form Registrations in which
the Company shall pay all Registration Expenses ("Company-paid Long-Form
Registrations") and (ii) two Long-Form Registrations in which the holders of
Registrable Securities shall pay their share of the Registration Expenses as
provided in paragraph 5 hereof. The holders of Warrant Registrable Securities
shall be entitled to request one Company-paid Long Form Registration (unless
prior thereto such holders have exercised their rights under paragraph 1(c)
below). A registration shall not count as one of the permitted Long-Form
Registrations until it has become effective, and neither the last or any
subsequent Company-paid Long-Form Registration nor the last or any subsequent
Long-Form Registration pursuant to clause (ii) above shall count as one of the
permitted Long-Form Registrations unless the holders of Registrable Securities
are able to register and sell at least 90% of the Registrable Securities
requested to be included in such registration; provided that in any event the
Company shall pay all Registration Expenses in connection with any registration
initiated as a Company-paid Long-Form Registration whether or not it has become
effective and whether or not such registration has counted as one of the
permitted Company-paid Long-Form Registrations.
(c) Short-Form Registrations. In addition to the Long-Form Registrations
provided pursuant to paragraph 1(b), the holders of Investor Registrable
Securities shall be entitled to request an unlimited number of Short-Form
Registrations in which the Company shall pay all Registration Expenses, and the
holders of Warrant Registrable Securities shall be entitled to request one
Short-Form Registration in which the Company shall pay all Registration Expenses
(unless prior thereto such holders have exercised their rights under paragraph
1(b) above). Demand Registrations shall be Short-Form Registrations whenever the
Company is permitted to use any applicable short form. After the Company has
become subject to the reporting requirements of the Securities Exchange Act, the
Company shall use its best efforts to make Short-Form Registrations on Form S-3
available for the sale of Registrable Securities. As described in this paragraph
1(c) and paragraph 1(b) above, the holders of Warrant Registrable Securities
shall only be entitled to initiate one Demand Registration under this Agreement
(which single Demand Registration may be either a Long-Form Registration or a
Short-Form Registration) (it being understood that a registration will not count
as such single Demand Registration until it has become effective). However, if
the holders of Warrant Registrable Securities are not able to register and sell
at least 90% of the Warrant Registrable Securities requested to be included in
such registration, such holders shall be entitled to request one additional
registration hereunder in which the Company shall pay all Registration Expenses
and if the holders of Warrant Registrable Securities are not able to register
and sell at least an aggregate of 50% of the Warrant Registrable Securities
requested to be included in both the single Demand Registration and the
additional registration, such holders shall be entitled to request one
additional registration hereunder in which the Company shall pay all
Registration Expenses.
(d) Priority on Demand Registrations. The Company shall not include in any
Demand Registration any securities which are not Registrable Securities without
the prior written consent of the holders of a
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majority of the Registrable Securities included in such registration. If a
Demand Registration is an underwritten offering and the managing underwriters
advise the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and other
securities, if any, which can be sold in an orderly manner in such offering
within a price range acceptable to the holders of a majority of the Registrable
Securities initially requesting registration, the Company shall include in such
registration prior to the inclusion of any securities which are not Registrable
Securities the number of Registrable Securities requested to be included which
in the opinion of such underwriters can be sold in an orderly manner within the
price range of such offering, pro rata among the respective holders thereof on
the basis of the amount of Registrable Securities owned by each such holder. Any
Persons other than holders of Registrable Securities who participate in Demand
Registrations which are not at the Company's expense must pay their share of the
Registration Expenses as provided in paragraph 5 hereof.
(e) Restrictions on Registrations. During the first eighteen (18) months
following the Company's initial public offering of Class A Common, the Company
shall not be obligated to effect any Demand Registration within 180 days after
the effective date of a previous Demand Registration and thereafter the Company
shall not be obligated to effect any Demand Registration within 360 days after
the effective date of a previous Demand Registration. The Company may postpone
for up to 90 days the filing or the effectiveness of a registration statement
for a Demand Registration if the Company's board of directors determines in its
reasonable good faith judgment that such Demand Registration would reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company to engage in any acquisition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer, reorganization
or similar transaction; provided that in such event, the holders of Registrable
Securities initially requesting such Demand Registration shall be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as one of the permitted Demand Registrations
hereunder and the Company shall pay all Registration Expenses in connection with
such registration. The Company may delay a Demand Registration hereunder only
once in any twelve-month period.
(f) Other Registration Rights. Except as provided in this Agreement, the
Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of a majority of the Registrable Securities.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
shall give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and shall, subject to paragraphs 2(c)
and 2(d) below, include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within 20 days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number of shares owned by each
such holder, and (iii) third, other securities requested to be included in such
registration.
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(d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration and the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such securities on the basis of the number of securities owned by each such
holder, and (ii) second, other securities requested to be included in such
registration.
(e) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least 180 days has elapsed from the effective date of such
previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities shall not effect any public sale
or distribution (including sales pursuant to Rule 144) of equity securities of
the Company, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and the 90-day period
beginning on the effective date of the Company's initial public offering of
Class A Common under the Securities Act, unless the underwriters managing the
registered public offering otherwise agree (it being understood that each holder
of Registrable Securities will be notified of such sale or distribution on or
prior to the beginning of such holdback period).
(b) The Company (i) shall not effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of the Company's initial public
offering of Class A Common under the Securities Act or any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree, and (ii) shall cause each holder of at least 2% of its Class A
Common, or any securities convertible into or exchangeable or exercisable for
Class A Common, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during any such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Company shall as expeditiously
as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective; provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to the counsel selected by the
holders of a majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed (which documents
shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness of
each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to
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keep such registration statement effective for a period of not less than 180
days and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company shall prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the NASD automated quotation system and, if
listed on the NASD automated quotation system, use its best efforts to secure
designation of all such Registrable Securities covered by such registration
statement as a NASDAQ "national market system security" within the meaning of
Rule 11Aa2-1 of the Securities and Exchange Commission or, failing that, to
secure NASDAQ authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including effecting a stock split or a combination of
shares);
(i) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full 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;
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(k) permit any holder of Registrable Securities which holder, in its sole
and exclusive judgment, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) 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 as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities; and
(n) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the holders of a majority of the Registrable
Securities being sold reasonably request; provided that such Registrable
Securities constitute at least 10% of the securities covered by such
registration statement).
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, fees and disbursements of custodians,
and fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding discounts and commissions)
and other Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), shall be borne as provided in this Agreement, except
that the Company shall, 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 annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the fees and disbursements of one counsel
chosen by the holders of a majority of the Registrable Securities requesting
such registration and for the fees and disbursements of each additional counsel
retained by any holder of Registrable Securities for the purpose of rendering a
legal opinion on behalf of such holder in connection with any underwritten
Demand Registration or Piggyback Registration.
(c) To the extent Registration Expenses are not required to be paid by the
Company, each holder of securities included in any registration hereunder shall
pay those Registration Expenses allocable to the registration of such holder's
securities so included, and any Registration Expenses not so allocable shall be
borne by all sellers of securities included in such registration in proportion
to the aggregate selling price of the securities to be so registered.
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6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law, each
holder of Registrable Securities, its officers and directors and each Person who
controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company and
the underwriter, and their directors and officers and each Person who controls
the Company or the underwriter, as the case may be (within the meaning of the
Securities Act), against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder; provided that the obligation to indemnify shall be individual, not
joint and several, for each holder and shall be limited to the net amount of
proceeds received by such holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give prompt notice shall not
impair any Person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
7. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
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holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company and the underwriters with respect
thereto, except as otherwise provided in paragraph 6 hereof.
8. Definitions.
(a) "Class A Common " means the Company's Class A Common Stock, par value
$0.01 per share.
(b) "Class B Common " means the Company's Class B Common Stock, par value
$0.01 per share.
(c) "DMG Warrant" means that certain warrant to purchase Class B Common
issued to DMG pursuant to the transactions contemplated by that certain Master
Lease Receivables Asset-Backed Financing Facility Agreement, dated as of January
12, 1998, by and among the Company, ▇▇▇▇▇▇ Leasing Receivables Corp. I and DMG.
(d) "ING Warrant" means that certain warrant to purchase Class A Common
issued to ING pursuant to the transactions contemplated by that certain Purchase
Agreement, dated as of the date hereof, by and between the Company and ING.
(e) "Investor Registrable Securities" means (i) any Class A Common issued
upon the conversion of any Class A Preferred issued pursuant to the 1998
Purchase Agreement, (ii) any Class A Common issued upon the conversion of any
Class B Common issued upon conversion of any Class B Preferred issued pursuant
to the 1998 Purchase Agreement, (iii) any Class A Common issued upon the
conversion of any Class A Preferred issued upon the conversion of any Class B
Preferred issued pursuant to the 1998 Purchase Agreement, (iv) any Class A
Common issued upon conversion of any Class C Preferred issued pursuant to the
1999 Purchase Agreement and (v) any Class A Common or Class B Common issued or
issuable with respect to the securities referred to in clauses (i), (ii), (iii)
and (iv) above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization and (vi) any other shares of Class A Common or other common stock
held by Persons holding securities described in clauses (i) to (v), inclusive,
above.
(f) "Registrable Securities" means, collectively, the Investor Registrable
Securities and the Warrant Registrable Securities. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when they have been distributed to the public pursuant to a offering registered
under the Securities Act or sold to the public through a broker, dealer or
market maker in compliance with Rule 144 under the Securities Act (or any
similar rule then in force) or repurchased by the Company or any Subsidiary. For
purposes of this Agreement, a Person shall be deemed to be a holder of
Registrable Securities, and the Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Registrable Securities hereunder.
(g) "Warrant Registrable Securities" means (i) any Class A Common issued
or issuable upon the conversion of any Class B Common issued or issuable upon
the exercise of the DMG Warrant, (ii) any Class A Common issued or issuable upon
the exercise of the ING Warrant, (iii) any Class A Common issued or issuable
upon the exercise of the Wachovia Warrant and (iv) any Class A Common or Class B
Common issued or issuable with respect to the securities referred to in clauses
(i), (ii) and (iii) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to the Warrant Registrable Securities held by any
Person, such securities shall not constitute Warrant Registrable
8
Securities at any time when and for so long as such holder can sell without
registration all such Warrant Registrable Securities owned by such holder to the
public in a single transaction in compliance with Rule 144 under the Securities
Act (or any similar rule then in force).
(h) Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the 1999 Purchase Agreement.
9. Miscellaneous.
(a) Selection of Investment Bankers. The selection of investment banker(s)
and manager(s) for any public offering or private sale by the Company of its
securities must be approved by the holders of a majority of the Registrable
Securities participating in such offering or sale, which approval shall not be
unreasonably withheld so long as such investment banker(s) and manager(s) are of
recognized national standing and, in the case of a public offering, can
reasonably be expected to provide the requisite degree of analytical and other
support to the Company and the investing public following such offering.
(b) No Inconsistent Agreements. The Company shall not hereafter enter into
any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(c) Adjustments Affecting Registrable Securities. The Company shall not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would materially and adversely
affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(d) Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages would not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(e) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the Registrable
Securities; provided that no amendment or waiver of Sections 1 through 6
(inclusive) of this Agreement which materially and adversely affects the holders
of Warrant Registrable Securities in a manner inconsistent with the treatment of
the holders of other Registrable Securities shall be effective without the prior
written consent of the holders of a majority of Warrant Registrable Securities
(except that no amendment or waiver of (i) the demand rights of the holders of
Warrant Registrable Securities in Section 1 above or (ii) this Section 9(e)
shall be effective without the prior written consent of the holders of a
majority of Warrant Registrable Securities).
(f) Successors and Assigns. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(g) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(h) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts (including by means of telecopied signature pages), any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
9
(i) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(j) Governing Law . The corporate law of the State of Delaware shall
govern all issues and questions concerning the relative rights and obligations
of the Company and its stockholders. All other issues and questions concerning
the construction, validity, enforcement and interpretation of this Agreement and
the exhibits and schedules hereto shall be governed by, and construed in
accordance with, the laws of the State of New Jersey, without giving effect to
any choice of law or conflict of law rules or provisions (whether of New Jersey
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New Jersey.
(k) Notices . All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to PCF IV, PEF, ING and Wachovia at the address
indicated on the attached Schedule of Purchasers attached hereto and to the
Company and to DMG at the addresses indicated below:
If to the Company:
▇▇▇▇▇▇ Leasing Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to DMG:
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
10
IN WITNESS WHEREOF, the parties have executed this Second Amended and
Restated Registration Agreement as of the date first written above.
▇▇▇▇▇▇ LEASING CORPORATION
By:
----------------------------------------
Its:
----------------------------------------
PRIMUS CAPITAL FUND IV LIMITED PARTNERSHIP
By: Primus Venture Partners IV
Limited Partnership, its general partner
By: Primus Venture Partners IV, Inc.,
its general partner
By:
----------------------------------------
Its:
----------------------------------------
PRIMUS EXECUTIVE FUND LIMITED PARTNERSHIP
By: Primus Venture Partners IV
Limited Partnership, its general partner
By: Primus Venture Partners IV, Inc.,
its general partner
By:
----------------------------------------
Its:
----------------------------------------
DEUTSCHE BANK SECURITIES INC.
By:
----------------------------------------
Its:
----------------------------------------
By:
----------------------------------------
Its:
----------------------------------------
ING (U.S.) CAPITAL LLC
By:
----------------------------------------
Its:
----------------------------------------
WACHOVIA CAPITAL INVESTMENTS, INC.
By:
----------------------------------------
Its:
----------------------------------------
11
SCHEDULE OF PURCHASERS
Primus Capital Fund IV Limited Partnership Wachovia Capital Investments, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Suite 200 26th Floor, Mail Code GA
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Loyal ▇. ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Primus Executive Fund Limited Partnership with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Suite 2800
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Atlanta, Georgia
Attention: Loyal ▇. ▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇
ING (U.S.) Capital LLC
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
12
▇▇▇▇▇▇ LEASING CORPORATION
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED REGISTRATION AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED REGISTRATION
AGREEMENT (the "AMENDMENT") is made as of February 28, 2001, by and among ▇▇▇▇▇▇
Leasing Corporation, a Delaware corporation (the "COMPANY") and the parties to
that certain Second Amended and Restated Registration Agreement, dated as of
April 7, 2000 (the "REGISTRATION AGREEMENT"). All capitalized terms used but not
defined herein shall have the meanings prescribed to them in the Registration
Agreement.
WHEREAS, the Company and Wachovia are parties to a certain purchase
agreement dated as of the date hereof (the "WACHOVIA II PURCHASE AGREEMENT"),
whereby the Company will issue an 11.0% senior subordinated note (or notes)
issued in accordance with the Wachovia II Purchase Agreement, due March 30,
2006, in the aggregate principal amount of $2,150,000, and a warrant (or
warrants) issued in accordance with the Warrant Agreement (as defined in the
Wachovia II Purchase Agreement) (the "WACHOVIA II WARRANT") to purchase, on or
after the Lapse Date, up to the lesser of (i) 93,639 Class A shares of common
stock of the Company or (ii) a number of shares of Class A common stock of the
Company representing, as of the Lapse Date, two percent (2%) of the common
shares of the Company on a Fully-Diluted Basis (each such term as defined in the
Wachovia II Purchase Agreement);
WHEREAS, the Company, PCF IV, PEF, DMG, ING and Wachovia desire to
amend certain provisions the Registration Agreement as provided herein; and
WHEREAS, the execution and delivery of this Amendment is a condition to
the Closing of under the Wachovia II Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby amend the Registration
Agreement as follows:
1. Amendment of Registration Agreement. From and after the date hereof,
all references to "Wachovia Warrant" contained in the Registration Agreement
shall be deemed to include the Wachovia Warrant issued pursuant to the Wachovia
Note Purchase Agreement and the Wachovia II Warrant issued pursuant to the
Wachovia II Purchase Agreement. From and after the date hereof, all references
to "this Agreement" (or similar references) contained in the Registration
Agreement shall be deemed references to the Registration Agreement as amended
hereby.
2. Ratification of Registration Agreement. Except as expressly modified
by the terms of this Amendment, the Registration Agreement shall continue in
full force and effect in accordance with its terms.
3. Miscellaneous.
3.1 Gender. Any pronoun used herein shall be deemed to cover all
genders.
3.2 Titles. The titles of the sections of this Amendment are for
convenience of reference only and are not to be considered in construing this
Amendment.
3.3 Counterparts. This Amendment may be executed in any number of
counterparts (including by means of telecopied signature pages), each of which
shall be an original, but all of which together shall constitute one instrument.
3.4 Governing Law. The corporate law of the State of Delaware shall
govern all issues and questions concerning the relative rights and obligations
of the Company and its stockholders. All other questions concerning the
construction, validity, enforcement and interpretation of this Amendment shall
be governed by, and construed in accordance with, the laws of the State of New
Jersey, without giving effect to any choice of law or conflict of law rules or
provision (whether of New Jersey or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New Jersey.
[Signatures Begin on Next Page]
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
either themselves or by their duly authorized representatives as of the date
first written above.
▇▇▇▇▇▇ LEASING CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
PRIMUS CAPITAL FUND IV LIMITED PARTNERSHIP
By: Primus Venture Partners Limited
Partnership, its general partner
By: Primus Venture Partners IV, Inc.,
its general partner
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
PRIMUS EXECUTIVE FUND LIMITED PARTNERSHIP
By: Primus Venture Partners Limited
Partnership, its general partner
By: Primus Venture Partners IV, Inc.,
its general partner
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
ING (U.S.) CAPITAL LLC
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
3
DEUTSCHE BANK SECURITIES INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
WACHOVIA CAPITAL INVESTMENTS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
4
▇▇▇▇▇▇ LEASING CORPORATION
SECOND AMENDMENT TO THE SECOND
AMENDED AND RESTATED REGISTRATION AGREEMENT
THIS SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED REGISTRATION
AGREEMENT (the "AMENDMENT") is made as of July __, 2001, by and among ▇▇▇▇▇▇
Leasing Corporation, a Delaware corporation (the "COMPANY") and the parties to
that certain Second Amended and Restated Registration Agreement, dated as of
April 7, 2000, and amended as of February 28, 2001, (the "REGISTRATION
AGREEMENT"). All capitalized terms used but not defined herein shall have the
meanings prescribed to them in the Registration Agreement.
WHEREAS, the Company and Wachovia Capital Investments, Inc.
("WACHOVIA") are parties to a certain purchase agreement dated as of the date
hereof (the "WACHOVIA EQUITY PURCHASE AGREEMENT") whereby the Company will issue
to Wachovia up to 101,500 shares of the Company's Class D Convertible Preferred
Stock (in up to two separate closings);
WHEREAS, the Company, PCF IV, PEF, DMG, ING and Wachovia desire to
amend certain provisions of the Registration Agreement as provided herein; and
WHEREAS, the execution and delivery of this Amendment is a condition to
the Closing of the Wachovia III Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby amend the Registration
Agreement as follows:
1. Amendments to Registration Agreement.
1.1. From and after the date hereof, Sections 1(a), (b) and (c) of
the Registration Agreement shall be deleted in their entirety and the following
shall be inserted in place thereof:
"(a) Request for Registration. At any time after the Company has
completed a public offering of its Class A Common under the Securities
Act, the holders of a majority of each of the Class A/C Registrable
Securities, Class D Registrable Securities and the Warrant Registrable
Securities may each separately request registration under the Securities
Act of all or any portion of their Registrable Securities on Form S-1 or
any similar long-form registration ("Long-Form Registrations"), and the
holders of a majority of each of the Class A/C Registrable Securities,
Class D Registrable Securities and the Warrant Registrable Securities may
each separately request registration under the Securities Act of all or
any portion of their Registrable Securities on Form S-2 or S-3 or any
similar short-form registration ("Short-Form Registrations") if available.
All registrations requested pursuant to this paragraph 1(a) are
referred to herein as "Demand Registrations." Each request for a Demand
Registration shall specify the approximate number of Registrable
Securities requested to be registered and the anticipated per share price
range for such offering. Within ten days after receipt of any such
request, the Company shall give written notice of such requested
registration to all other holders of Registrable Securities and shall,
subject to paragraph 1(d) below, include in such registration all
Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 15 days after the receipt of
the Company's notice.
(b) Long-Form Registrations. The holders of Class A/C Registrable
Securities and Class D Registrable Securities each separately shall be
entitled to request (i) two Long-Form Registrations in which the Company
shall pay all Registration Expenses ("Company-Paid Long-Form
Registrations") and (ii) two Long-Form Registrations in which each such
holder of Registrable Securities shall pay their share of the Registration
Expenses as provided in paragraph 5 hereof. The holders of Warrant
Registrable Securities shall be entitled to request one Company-Paid Long
Form Registration (unless prior thereto such holders have exercised their
rights under paragraph 1(c) below). A registration shall not count as one
of the permitted Long-Form Registrations until it has become effective,
and neither the last or any subsequent Company-Paid Long-Form Registration
nor the last or any subsequent Long-Form Registration pursuant to clause
(ii) above shall count as one of the permitted Long-Form Registrations
unless the holders of Registrable Securities are able to register and sell
at least 90% of the Registrable Securities requested by such holder to be
included in such registration; provided that in any event the Company
shall pay all Registration Expenses in connection with any registration
initiated as a Company-Paid Long-Form Registration whether or not it has
become effective and whether or not such registration has counted as one
of the permitted Company-Paid Long-Form Registrations.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to paragraph 1(b), the holders of Class
A/C Registrable Securities and Class D Registrable Securities each
separately shall be entitled to request an unlimited number of Short-Form
Registrations in which the Company shall pay all Registration Expenses,
and the holders of Warrant Registrable Securities shall be entitled to
request one Short-Form Registration in which the Company shall pay all
Registration Expenses (unless prior thereto such holders have exercised
their rights under paragraph 1(b) above). Demand Registrations shall be
Short-Form Registrations whenever the Company is permitted to use any
applicable short form. After the Company has become subject to the
reporting requirements of the Securities Exchange Act, the Company shall
use its best efforts to make Short-Form Registrations on Form S-3
available for the sale of Registrable Securities. As described in this
paragraph 1(c) and paragraph 1(b) above, the holders of Warrant
-2-
Registrable Securities shall only be entitled to initiate one Demand
Registration under this Agreement (which single Demand Registration may be
either a Long-Form Registration or a Short-Form Registration) (it being
understood that a registration will not count as such single Demand
Registration until it has become effective). However, if the holders of
Warrant Registrable Securities are not able to register and sell at least
90% of the Warrant Registrable Securities requested to be included in such
registration, such holders shall be entitled to request one additional
registration hereunder in which the Company shall pay all Registration
Expenses and if the holders of Warrant Registrable Securities are not able
to register and sell at least an aggregate of 50% of the Warrant
Registrable Securities requested to be included in both the single Demand
Registration and the additional registration, such holders shall be
entitled to request one additional registration hereunder in which the
Company shall pay all Registration Expenses."
1.2. From and after the date hereof, Section 8(e) of the
Registration Agreement shall be deleted in its entirety and the following shall
be inserted in its place:
"(e)"Investor Registrable Securities" means (i) any Class A/C
Registrable Securities and (ii) any Class D Registrable Securities."
1.3. From and after the date hereof the following definitions shall
be added to the definitions in Section 8 of the Registration Agreement:
""Class A/C Registrable Securities" means (i) any Class A Common
issued upon the conversion of any Class A Preferred issued pursuant to the
1998 Purchase Agreement, (ii) any Class A Common issued upon the
conversion of any Class A Preferred issued upon the conversion of any
Class B Preferred issued pursuant to the 1998 Purchase Agreement, (iii)
any Class A Common issued upon conversion of any Class C Preferred issued
pursuant to the 1999 Purchase Agreement, (iv) any Class A Common issued or
issuable with respect to the securities referred to in clauses (i), (ii)
and (iii) by way of stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization,
and (v) any other Class A Common or other common stock held by persons
holding securities described in clauses (i) to (iv), inclusive, above.
"Class D Registrable Securities" means (i) any Class A Common issued
upon the conversion of any of the Company's Class D Convertible Preferred
Stock issued pursuant to the Purchase Agreement by and between the Company
and Wachovia, dated as of the date hereof, (ii) any Class A Common issued
or issuable with respect to the securities referred to in clause (i) by
way of stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization,
-3-
and (iii) any other Class A Common or other common stock held by persons
holding securities described in clauses (i) and (ii) above."
1.4. From and after the date hereof the Schedule of Purchasers shall
be deleted in its entirety and the Schedule of Purchasers attached hereto shall
be inserted in its place.
1.5. From and after the date hereof, all references to "the holders
of a majority of the Registrable Securities" shall be changed to "the holders of
65% of the Registrable Securities."
1.6. From and after the date hereof, all references to "New Jersey"
in Section 9(j) of the Registration Agreement shall be changed to "New York."
1.7. From and after the date hereof, all references to "this
Agreement" (or similar references) contained in the Registration Agreement shall
be deemed references to the Registration Agreement as amended hereby.
2. Ratification of Registration Agreement. Except as expressly modified
by the terms of this Amendment, the Registration Agreement shall continue in
full force and effect in accordance with its terms.
3. Miscellaneous.
3.1. Gender. Any pronoun used herein shall be deemed to cover all
genders.
3.2. Titles. The titles of the sections of this Amendment are for
convenience of reference only and are not to be considered in construing this
Amendment.
3.3. Counterparts. This Amendment may be executed in any number of
counterparts (including by means of telecopied signature pages), each of which
shall be an original, but all of which together shall constitute one instrument.
3.4. Governing Law. The corporate law of the State of Delaware shall
govern all issues and questions concerning the relative rights and obligations
of the Company and its stockholders. All other questions concerning the
construction, validity, enforcement and interpretation of this Amendment shall
be governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to any choice of law or conflict of law rules or
provision (whether of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.
[Remainder of page intentionally left blank.]
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
either themselves or by their duly authorized representatives as of the date
first written above.
▇▇▇▇▇▇ LEASING CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
PRIMUS CAPITAL FUND IV LIMITED PARTNERSHIP
By: Primus Venture Partners Limited
Partnership, its general partner
By: Primus Venture Partners IV, its general
partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PRIMUS EXECUTIVE FUND LIMITED PARTNERSHIP
By: Primus Venture Partners Limited
Partnership, its general partner
By: Primus Venture Partners IV, its general
partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ING (U.S.) CAPITAL LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Signature Page 1 of 2
Second Amendment To The Second Amended and Restated Registration Agreement
DEUTSCH BANK ALEX. ▇▇▇▇▇ INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
WACHOVIA CAPITAL INVESTMENTS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Signature Page 2 of 2
Second Amendment To The Second Amended and Restated Registration Agreement