COMPUCREDIT CORPORATION 5.875% CONVERTIBLE SENIOR NOTES

 

RESALE REGISTRATION RIGHTS AGREEMENT, dated as of November 23, 2005, by and between CompuCredit Corporation, a Georgia corporation (together with any successor entity, herein referred to as the “ Company ”), and Bear, Stearns & Co. Inc., as representative (the “ Representative ”) of the several initial purchasers (the “ Initial Purchasers ”) as identified under the Purchase Agreement (as defined below).

 

Pursuant to the Purchase Agreement, dated as of November 17, 2005, by and between the Company and Bear, Stearns & Co. Inc., as representative of the Initial Purchasers (the “ Purchase Agreement ”), relating to the initial placement (the “ Initial Placement ”) of the Notes (as defined below), the Initial Purchasers have agreed to purchase from the Company $300,000,000 ($350,000,000 if the Initial Purchasers exercise their option in full) in aggregate principal amount at maturity of 5.875% Convertible Senior Notes due 2035 (the “ Notes ”).  The Notes will be convertible into fully paid, nonassessable shares of common stock, no par value per share, of the Company (the “ Common Stock ”).  The Notes will be convertible on the terms, and subject to the conditions, set forth in the Indenture (as defined herein).  To induce the Initial Purchasers to purchase the Notes, the Company has agreed to provide the registration rights set forth in this Agreement pursuant to Section 5(g) of the Purchase Agreement.

 

The parties hereby agree as follows:

 

1.                                        Definitions. Capitalized terms used in this Agreement without definition shall have their respective meanings set forth in the Purchase Agreement.   As used in this Agreement, the following capitalized terms shall have the following meanings:

 

“ Affiliate ” of any specified person means any other person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such specified person.  For purposes of this definition, control of a person means the power, direct or indirect, to direct or cause the direction of the management and policies of such person whether by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“ Agreement ” means this Resale Registration Rights Agreement.

 

“ Amendment Effectiveness Deadline Date ” has the meaning set forth in Section 2(f)(i) hereof.

 

“ Blue Sky Application ” has the meaning set forth in Section 6(a)(i) hereof.

 

“ Business Day ” has the meaning set forth in the Indenture.

 

“ Closing Date ” means the date of the first issuance of the Notes.

 

“ Commission ” means the Securities and Exchange Commission.

 

 

“ Common Stock ” has the meaning set forth in the preamble hereto.

 

“ Company ” has the meaning set forth in the preamble hereto.

 

“ Effectiveness Period ” has the meaning set forth in Section 2(a)(iii) hereof.

 

“ Effectiveness Target Date ” has the meaning set forth in Section 2(a)(ii) hereof.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“ Holder ” means a Person who owns, beneficially or otherwise, Transfer Restricted Securities.

 

“ Indemnified Holder ” has the meaning set forth in Section 6(a) hereof.

 

“ Indenture ” means the Indenture, dated as of November 23, 2005 between the Company and Wachovia Bank, N.A., as trustee (the “ Trustee ”), pursuant to which the Notes are to be issued, as such Indenture is amended, modified or supplemented from time to time in accordance with the terms thereof.

 

“ Initial Purchasers ” has the meaning set forth in the preamble hereto.

 

“ Liquidated Damages ” has the meaning set forth in Section 3(a) hereof.

 

“ Liquidated Damages Payment Date ” means each January 30 and July 30.

 

“ Losses ” has the meaning set forth in Section 6(e) hereof.

 

“ Majority of Holders ” means holders holding over 50% of the aggregate principal amount of the Notes outstanding; provided, that, for the purpose of this definition, a holder of shares of Common Stock which constitute Transfer Restricted Securities and issued upon conversion of the Notes shall be deemed to hold an aggregate principal amount at maturity of the Notes (in addition to the principal amount at maturity of the Notes held by such holder) equal to the quotient of (x) the number of such shares of Common Stock held by such holder and (y) the conversion rate in effect at the time of such conversion as determined in accordance with the Indenture.

 

“ NASD ” means the National Association of Securities Dealers, Inc.

 

“ Notes ” has the meaning set forth in the preamble hereto.

 

“ Notice and Questionnaire ” means a written notice executed by the respective Holder and delivered to the Company containing substantially the information called for by the Selling Securityholder Notice and Questionnaire attached as Appendix A to the Offering Memorandum of the Company dated November 17, 2005 relating to the Notes.

 

“ Notice Holder ” means, on any date, any Holder of Transfer Restricted Securities that has delivered a Notice and Questionnaire to the Company on or prior to such date.

 

2

 

“ Person ” means an individual, partnership, corporation, company, unincorporated organization, trust, joint venture or a government or agency or political subdivision thereof.

 

“ Purchase Agreement ” has the meaning set forth in the preamble hereto.

 

“ Prospectus ” means the prospectus included in the Shelf Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such prospectus.

 

“ Record Holder ” means with respect to any Liquidated Damages Payment Date, each Person who is a Holder on the 15 ^th day preceding the relevant Liquidated Damages Payment Date.  In the case of a Holder of shares of Common Stock issued upon conversion of the Notes, “Record Holder” shall mean each Person who is a Holder of shares of Common Stock which constitute Transfer Restricted Securities on the 15 ^th day preceding the relevant Liquidated Damages Payment Date.

 

“ Registration Default ” has the meaning set forth in Section 3(a) hereof.

 

“ Representative ” has the meaning set forth in the preamble hereto.

 

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“ Shelf Filing Deadline ” has the meaning set forth in Section 2(a)(i) hereof.

 

“ Shelf Registration Statement ” has the meaning set forth in Section 2(a)(i) hereof.

 

“ Subsequent Shelf Registration Statement ” has the meaning set forth in Section 2(c) hereof.

 

“ Suspension Notice ” has the meaning set forth in Section 4(c) hereof.

 

“ Suspension Period ” has the meaning set forth in Section 4(b)(ii) hereof.

 

“ TIA ” means the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder, in each case, as in effect on the date the Indenture is qualified under the TIA.

 

“ Transfer Restricted Securities ” means each Note and each share of Common Stock issued upon conversion of the Notes until the earlier of:

 

(i)                                      the date on which such Note or such share of Common Stock issued upon conversion of the Notes has been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement;

 

(ii)                                   the date on which such Note or such share of Common Stock issued upon conversion of the Notes is transferred in compliance with Rule 144 under

 

3

 

the Securities Act or may be sold or transferred by a person who is not an affiliate of the Company pursuant to Rule 144 under the Securities Act (or any other similar provision then in force) without any volume or manner of sale restrictions thereunder; or

 

(iii)                                the date on which such Note or such share of Common Stock issued upon conversion of the Notes ceases to be outstanding (whether as a result of redemption, repurchase and cancellation, conversion or otherwise).

 

Unless the context otherwise requires, the singular includes the plural, and words in the plural include the singular.

 

2.                          Shelf Registration .

 

(a)                                   The Company shall:

 

(i)                                      as promptly as practicable (but in no event more than 120 days after the Closing Date) (the “ Shelf Filing Deadline ”), cause to be filed a registration statement pursuant to Rule 415 under the Securities Act or any similar rule that may be adopted by the Commission (the “ Shelf Registration Statement ”), which Shelf Registration Statement shall provide for the registration and resales, on a continuous or delayed basis, of all Transfer Restricted Securities held by Holders that have provided the information required pursuant to the terms of Section 2(b) hereof;

 

(ii)                                   use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective under the Securities Act by the Commission not later than 210 days after the date hereof (the “ Effectiveness Target Date ”); and

 

(iii)                                use its reasonable best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required by the Securities Act and by the provisions of Section 4(b) hereof to the extent necessary to ensure that (A) it is available for resales by the Holders of Transfer Restricted Securities entitled, subject to Section 2(b), to the benefit of this Agreement and (B) it conforms with the requirements of this Agreement and the Securities Act and the rules and regulations of the Commission promulgated thereunder as announced from time to time, for a period (the “ Effectiveness Period ”) from the date the Shelf Registration Statement is declared effective by the Commission until the earliest of:

 

(1)                         the date when the Holders of Transfer Restricted Securities are able to sell all such Transfer Restricted Securities immediately without restriction pursuant to Rule 144(k) under the Securities Act; or

 

(2)                         the date when all of the Transfer Restricted Securities are registered under the Shelf Registration Statement and disposed of in accordance with the Shelf Registration Statement or pursuant to Rule

 

4

 

144 under the Securities Act or any similar provision then in force or the Transfer Restricted Securities cease to be outstanding (whether as a result of redemption, repurchase, conversion or otherwise).

 

The Company shall be deemed not to have used its reasonable best efforts to keep the Shelf Registration Statement effective during the Effectiveness Period if it voluntarily takes any action that would result in Holders of Transfer Restricted Securities not being able to offer and sell such Securities at any time during the Effectiveness Period, unless such action is (x) required by applicable law or otherwise undertaken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets, and (y) permitted by Section 4(b)(ii) hereof.

 

(b)                        The Company shall furnish a written notice to each Holder of the Transfer Restricted Securities not less than thirty (30) days before filing the Shelf Registration Statement and therein inform each Holder that to have its Transfer Restricted Securities included in the Shelf Registration Statement it must deliver a completed Notice and Questionnaire to the Company.  At the time the Shelf Registration Statement is declared effective, each Holder that has delivered a completed Notice and Questionnaire to the Company (a “ Notice Holder ”) on or prior to the date that is the fifteenth (15) Business Day prior to such time of effectiveness shall be named as a selling securityholder in the Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of Transfer Restricted Securities in accordance with applicable law.  None of the Company’s securityholders (other than the Holders of Transfer Restricted Securities) shall have the right to include any of the Company’s securities in the Shelf Registration Statement.

 

(c)                         If the Shelf Registration Statement or any Subsequent Shelf Registration Statement ceases to be effective or fails to be usable for any reason at any time during the Effectiveness Period (other than because all Transfer Restricted Securities registered thereunder shall have been resold pursuant thereto or shall have otherwise ceased to be Transfer Restricted Securities), the Company shall use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty (30) days of such cessation of effectiveness amend the Shelf Registration Statement in a manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Shelf Registration Statement covering all of the securities that as of the date of such filing are Transfer Restricted Securities (a “ Subsequent Shelf Registration Statement ”).  If a Subsequent Shelf Registration Statement is filed, the Company shall use its reasonable best efforts to cause the Subsequent Shelf Registration Statement to become effective as promptly as is practicable after such filing and to keep such Registration Statement (or subsequent Shelf Registration Statement) continuously effective until the end of the Effectiveness Period.

 

(d)                        The Company shall supplement and amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement, if required by the Securities Act or as reasonably requested by the Initial Purchasers or by the Trustee on behalf of the

 

5

 

Holders of the Transfer Restricted Securities covered by such Shelf Registration Statement.

 

(e)                         The Company shall cause the Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement or such amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.

 

(f)                           Each Holder agrees that if such Holder wishes to sell Transfer Restricted Securities pursuant to a Shelf Registration Statement and related Prospectus, it will do so only in accordance with this Section 2(f) and the procedures set forth in Section 4 hereof.  Each Holder wishing to sell Transfer Restricted Securities pursuant to a Shelf Registration Statement and related Prospectus must deliver a Notice and Questionnaire to the Company.  In order to be named as a selling securityholder in the Prospectus at the time of effectiveness of the Shelf Registration Statement, the Notice and Questionnaire must be delivered at least fifteen Business Days prior to the effectiveness of the Shelf Registration Statement.  From and after the date the Shelf Registration Statement is declared effective the Company shall, as promptly as practicable after the date a Notice and Questionnaire is received by the Company, and in any event upon the later of (x) twenty (20) Business Days after such date or (y) fifteen (15) Business Days after the expiration of any Suspension Period in effect when the Notice and Questionnaire is delivered or put into effect within fifteen (15) Business Days of such delivery date:

 

(i)                        if required by applicable law, file with the Commission a post-effective amendment to the Shelf Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling securityholder in the Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of the Transfer Restricted Securities in accordance with applicable law and, if the Company shall file a post-effective amendment to the Shelf Registration Statement, use its reasonable best effort to cause such post-effective amendment to be declared effective under the Securities Act as promptly as is practicable, but in any event by the date (the “ Amendment Effectiveness Deadline Date ”) that is sixty (60) days after the date such post effective amendment is required by this clause to be filed;

 

(ii)                     provide such Holder copies of the any documents filed pursuant to Section 2(f)(i); and

 

(iii)                  notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 2(f)(i);

 

6

 

provided, that, if such Notice and Questionnaire is delivered during a Suspension Period or a Suspension Period begins within five (5) Business Days after the delivery of such Notice and Questionnaire, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Suspension Period in accordance with Section 4(b); provided, further , that, if the Company is required by law to file a post-effective amendment for the sole purpose of adding a Holder, the Company shall not be required to file more than one (1) such post-effective amendment pursuant to this Section 2(f) during any three (3) month period.  Notwithstanding anything contained herein to the contrary, (i) the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling securityholder in the Shelf Registration Statement or related Prospectus and (ii) the Amendment Effectiveness Deadline Date shall be extended by up to five (5) Business Days from the expiration of a Suspension Period (and the Company shall incur no obligation to pay Liquidated Damages during such extension) if such Suspension Period shall be in effect on the Amendment Effectiveness Deadline Date.

 

3.                          Liquidated Damages .

 

(a)                                   If:

 

(i)                                      the Shelf Registration Statement is not filed with the Commission prior to or on the Shelf Filing Deadline;

 

(ii)                                   the Shelf Registration Statement has not been declared effective by the Commission prior to or on the Effectiveness Target Date;

 

(iii)                                the Company has failed to perform its obligations set forth in Section 2(f) within the time period required therein;

 

(iv)                               any post-effective amendment to a Shelf Registration Statement filed pursuant to Section 2(f)(i) has not become effective under the Securities Act on or prior to the Amendment Effectiveness Deadline Date;

 

(v)                                  except as provided in Section 4(b)(i) hereof, the Shelf Registration Statement is filed and declared effective but, during the Effectiveness Period, shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within fifteen (15) Business Days by a post-effective amendment to the Shelf Registration Statement, a supplement to the Prospectus or a report filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that cures such failure and, in the case of a post-effective amendment, is itself immediately declared effective; or

 

(vi)                               (A)  prior to or on the 45th or 60th day, as the case may be, of any Suspension Period, such suspension has not been terminated or (B) the Suspension Periods exceed an aggregate of 90 days in any 12-month period;

 

(each such event referred to in foregoing clauses (i) through (vi), a “ Registration Default ”), the Company hereby agrees to pay interest (“ Liquidated Damages ”) with respect to the Transfer Restricted Securities from and including the day following the Registration Default to but

 

7

 

excluding the earlier of (1) the day on which the Registration Default has been cured and (2) the date the Shelf Registration Statement is no longer required to be kept effective, accruing at a rate:

 

(A)                                    in respect of the Notes, to each holder of the Notes, (x) with respect to the first 90-day period during which a Registration Default shall have occurred and be continuing, equal to 0.25% per annum of the aggregate principal amount of the Notes, and (y) with respect to the period commencing on the 91st day following the day the Registration Default shall have occurred and be continuing, equal to 0.50% per annum of the aggregate principal amount of the Notes; provided, that in no event shall Liquidated Damages accrue at a rate per year exceeding 0.50% of the aggregate principal amount of the Notes; and

 

(B)                                      in respect of the Notes that are Transfer Restricted Securities submitted for conversion into Common Stock during the existence of a Registration Default, the holder will not be entitled to receive any Liquidated Damages with respect to such Common Stock but will receive from the Company on the settlement date with respect to such conversion, accrued and unpaid Liquidated Damages to the holders of such Notes calculated in accordance with paragraph (A) to the Conversion Date (as defined in the Indenture) relating to such settlement date.

 

Notwithstanding anything herein to the contrary, Liquidated Damages will not be payable with respect to a Registration Default relating solely to a failure to register the Common Stock issuable upon conversion of the Notes.

 

(b)                        All accrued Liquidated Damages shall be paid in arrears to Record Holders by the Company on each Liquidated Damages Payment Date.  Upon the cure of all Registration Defaults relating to any particular Note or share of Common Stock, the accrual of Liquidated Damages with respect to such Note or share of Common Stock will cease.

 

All obligations of the Company set forth in this Section 3 that are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted Security shall survive until such time as all such obligations with respect to such Transfer Restricted Security shall have been satisfied in full.

 

The Liquidated Damages set forth above shall be the exclusive monetary remedy available to the Holders of Transfer Restricted Securities for each Registration Default.

 

4.                                        Registration Procedures .

 

(a)                                   In connection with the Shelf Registration Statement, the Company shall comply with all the provisions of Section 4(b) hereof and shall use its reasonable best efforts to effect such registration to permit the sale of the Transfer Restricted Securities, and pursuant thereto, shall as expeditiously as possible (but no later than the Shelf Filing

 

8

 

Deadline) prepare and file with the Commission a Shelf Registration Statement relating to the registration on any appropriate form under the Securities Act.

 

(b)                                  In connection with the Shelf Registration Statement and any Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Securities, the Company shall:

 

(i)                                      Subject to any notice by the Company in accordance with this Section 4(b) of the existence of any fact or event of the kind described in Section 4(b)(iv)(D), use its reasonable best efforts to keep the Shelf Registration Statement continuously effective during the Effectiveness Period; upon the occurrence of any event that would cause the Shelf Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of Transfer Restricted Securities during the Effectiveness Period, the Company shall file promptly an appropriate amendment to the Shelf Registration Statement, a supplement to the Prospectus or a report filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A), correcting any such misstatement or omission, and, in the case of either clause (A) or (B), use its reasonable best efforts to cause such amendment to be declared effective and the Shelf Registration Statement and the related Prospectus to become usable for their intended purposes as soon as practicable thereafter;

 

(ii)                                   Notwithstanding Section 4(b)(i) hereof, the Company may suspend the effectiveness of the Shelf Registration Statement (each such period, a “ Suspension Period ”):

 

(x) if an event occurs and is continuing as a result of which the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein would, in the Company’s judgment, contain 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 not misleading, or

 

(y) the occurrence or existence of any pending corporate development that, in the reasonable discretion of the Company, makes it necessary to suspend the availability of the Shelf Registration Statement.

 

Upon the occurrence of any event described in clauses (x) and (y) of this Section 4(b)(ii), the Company shall give notice to the Holders that the availability of the Shelf Registration Statement is suspended and, upon receipt of any such notice, each Holder agrees not to sell any Transfer Restricted Securities pursuant to the Shelf Registration Statement until such Holder’s receipt of copies of the supplemented or