REGISTRATION RIGHTS AGREEMENT
Exhibit 4.2
Execution
Version
THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of
April 8, 2008, by and between Origen Financial, Inc., a Delaware corporation (the
“Company”), and the Xxxxxxx X. Xxxxxxxx Trust u/a/d 12/13/04, (the “Holder”).
This Agreement is made in connection with the Warrant (together, the “Transaction
Documents”). In order to induce the Holder to enter into the Transaction Documents, the
Company has agreed to provide the registration rights provided for in this Agreement to the Holder.
The execution of this Agreement is a condition to the closing of the transactions contemplated by
the Transaction Documents.
In consideration of the mutual covenants and agreements set forth herein and for good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereby agree:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Affiliate” As defined in the Warrant.
“Agreement” As defined in the Preamble.
“Business Day” As defined in the Warrant.
“Commission” The Securities and Exchange Commission.
“Common Shares” Shares of the common stock of the Company, par value $.01 per
share.
“Company” As defined in the Preamble.
“Company Indemnified Parties” As defined in Section 8(b) hereof.
“Damages” As defined in Section 8(a)(i) hereof.
“End of Suspension Notice” As defined in Section 7(b) hereof.
“Exchange Act” The Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated by the Commission pursuant thereto.
“Holder” As defined in the Preamble.
“Holder Indemnified Parties” As defined in Section 8(a) hereof.
“Indemnified Party” Any one of the Holder Indemnified Parties and the Company
Indemnified Parties.
“Material Transaction” Any material transaction in which the Company proposes
to engage or is engaged, including a purchase or sale of assets or securities, financing,
merger, consolidation or any other transaction that would require disclosure pursuant to the
Securities Act or Exchange Act, and with respect to which the Company’s Board of Directors
has reasonably determined in good faith that compliance with this Agreement would require
the Company to disclose material, non-public information prior to such time as it would
otherwise be required to be disclosed.
“NASD” National Association of Securities Dealers, Inc.
“Person” An individual, partnership, corporation, trust, unincorporated
organization, government or agency or political subdivision thereof, or any other legal
entity.
“Prospectus” The prospectus included in any Registration Statement, including
any preliminary prospectus, and all other amendments and supplements to any such prospectus,
including post-effective amendments, and all material incorporated by reference or deemed to
be incorporated by reference, if any, in such prospectus.
“Register,” “Registered” and “Registration” Such terms shall
refer to a registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act and applicable rules and regulations thereunder, and the
declaration or ordering of the effectiveness of such Registration Statement.
“Registrable Shares” Each of the Shares, upon original issuance thereof, until
(i) the date on which it has been registered effectively pursuant to the Securities Act and
disposed of in accordance with the Registration Statement relating to it, (ii) the date on
which either it is distributed to the public pursuant to Rule 144 or is saleable pursuant to
Rule 144 during any three month period, or (iii) the date on which it is otherwise saleable,
without restriction, pursuant to an available exemption from registration under the
Securities Act.
“Registration Expenses” Any and all expenses incident to the performance of or
compliance with this Agreement, including without limitation: (i) all Commission, stock
exchange, NASD registration, listing and filing fees, (ii) all fees and expenses incurred in
connection with compliance with federal or state securities or blue sky laws (including any
registration, listing and filing fees and reasonable fees and disbursements of counsel in
connection with blue sky qualification of any of the Registrable Shares and the preparation
of a blue sky memorandum and compliance with the rules of the NASD), (iii) all expenses of
printing, delivering and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any certificates and other documents relating to the
performance of and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing of any of the Registrable Shares
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on any securities exchange or
The Nasdaq Stock Market pursuant to Section 5(l) hereof, (v) the fees and disbursements of counsel for the Company and of the independent public
accountants (including, without limitation, the expenses of any special audit and “cold
comfort” letters required by or incident to such performance) of the Company, (vi) any fees
and disbursements customarily paid by issuers or sellers of securities (including the fees
and expenses of any experts retained by the Company in connection with any Registration
Statement) and (vii) any reasonable fees and expenses of counsel to the Holder; provided,
however, that Registration Expenses shall exclude brokers’ commissions and transfer taxes,
if any, relating to the sale or disposition of Registrable Shares by the Holder.
“Registration Statement” Any registration statement of the Company, including
the Prospectus, amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in such
registration statement.
“Rule 144” Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission as a replacement thereto having substantially the same
effect as such rule.
“Rule 158” Rule 158 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission as a replacement thereto having substantially the same
effect as such rule.
“Rule 424” Rule 424 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission as a replacement thereto having substantially the same
effect as such rule.
“Securities Act” The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
“Shares” The Common Shares issued upon exercise of the Warrant and such other
unregistered Common Shares owned directly or indirectly by the Holder or any of the Holder’s
Affiliates.
“Suspension Event” As defined in Section 7(b) hereof.
“Suspension Notice” As defined in Section 7(b) hereof.
“Transaction Documents” As defined in the Recital.
“Underwritten Offering” A sale of securities of the Company to an underwriter
or underwriters for reoffering to the public.
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“Warrant” The Stock Purchase Warrant of even date herewith issued by the
Company to the Holder.
2. Demand Registration.
(a) At any time following the execution of this Agreement and the exercise of the
Warrant, the Holder may, by written notice to the Company, request that the Company
Register under the Securities Act all or any portion of the Registrable Shares held by the
Holder for sale in the manner specified in such notice; provided, however, that the Company
shall not be obligated to Register any Registrable Shares pursuant to such request: (i)
subject to Section 3 below, during the period beginning thirty (30) days prior to the
filing, and ending on a date ninety (90) days following the effective date, of a
Registration Statement filed by the Company relating to an Underwritten Offering only of
the Company’s capital stock (other than a Registration Statement for the Company’s capital
stock which does not give rise to incidental registration rights pursuant to Section 3
below); or (ii) if the Company provides a certificate of its Chief Executive Officer
stating that a Material Transaction exists at the time of the request, in which event no
such Registration Statement need be filed until the earlier of the lapse of sixty (60) days
from the issuance of such certificate or the date on which such Material Transaction no
longer exists; provided, however, that the Company may not exercise its right under this
clause (ii) more than twice in any twelve (12)-month period. The Company shall be
obligated to Register Registrable Shares under this Section 2 on one (1) occasion.
(b) The Company shall be entitled to include in any Registration Statement referred to
in this Section 2 for which the method of distribution is an Underwritten Offering, for
sale in accordance with the method of disposition specified by the Holder, Common Shares to
be sold by the Company for its own account, except as and to the extent that, in the
opinion of the managing underwriter (if such method of disposition shall be an Underwritten
Offering), such inclusion would adversely affect the marketing of the Registrable Shares to
be sold. Except with respect to Registration Statements on Form S-8 (or any successor
form), the Company will not file with the Commission any other registration statement with
respect to its Common Stock, whether for its own account or that of other stockholders,
from the date of receipt of a notice from the Holder pursuant to this Section 2 until the
completion of the period of distribution of the Registration contemplated thereby.
3. Incidental Registration; Form S-3 Registration. If the Company, at any time
following the exercise of the Warrant (other than pursuant to Section 2 above), proposes to
Register any of its 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 (except with respect to registration
statements on Form X-0, Xxxx X-0 or another form not available for registering Registrable Stock
for sale to the public), each such time it will give written notice to the Holder of its intention
to do so. Upon the written request of the Holder, given within Twenty (20) days after the date of
any such notice, to Register any of its Registrable Shares (which request shall state the intended
method of disposition thereof), the Company will cause the Registrable Shares as to
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which Registration shall have been so requested to be included in the securities to be covered by
the Registration Statement proposed to be filed by the Company, all to the extent required to
permit the sale or other disposition by the Holder (in accordance with its written request) of such
Registrable Shares so Registered. The Company may withdraw any such Registration Statement before
it becomes effective or postpone the offering of securities contemplated by such Registration
Statement without any obligation to the Holder. In the event that any registration pursuant to
this Section 3 shall be an Underwritten Offering of Common Stock, the Registrable Shares of the
Holder to be included in the registration pursuant to this Section 3 will be included in the
underwriting on the same terms and conditions as the Common Shares otherwise being sold through
underwriters under such Registration. The number Registrable Shares to be included in such an
underwriting may be reduced if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the securities to be sold by
the Company. If any Common Shares are to be included in such underwriting for the account of any
Person other than the Holder, the number of Common Shares to be included by any such Person and the
Registrable Shares of the Holder shall be reduced proportionately. Notwithstanding anything to the
contrary contained in this Section 3, in the event that there is an Underwritten Offering of
securities of the Company pursuant to a Registration covering Registrable Shares and the Holder
does not elect to sell its Registrable Shares to the underwriters in connection with such offering,
the Holder shall refrain from selling such Registrable Shares not registered pursuant to this
Section 3 during the period of distribution of the Company’s securities by such underwriters and
the period in which the underwriting syndicate participates in the market; provided, however, that
the Holder shall, in any event, be entitled to sell its Registrable Shares commencing on the 120th
day after the effective date of such Registration Statement. Any Registration under this Section 3
will not be counted as a registration under Section 2 above.
4. Rule 144 Reporting. With a view to making available the benefits of certain rules
and regulations of the Commission that may at any time permit the sale of the Registrable Shares to
the public without registration, the Company agrees to:
(a) Make and keep public information available, as those terms are understood and
defined in Rule 144, at all times while the Company is subject to the reporting
requirements of the Exchange Act;
(b) File with the Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange Act (at all times that it is
subject to such reporting requirements); and
(c) So long as the Holder owns any Registrable Shares, to furnish to the Holder
forthwith upon request a written statement by the Company as to its compliance with the
reporting requirements of said Rule 144 and of the Securities Act and the Exchange Act (at
all times that it is subject to the reporting requirements of the Exchange Act), a copy of
the most recent annual or quarterly report of the Company, and such other reports and
documents of the Company as the Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing the Holder to sell any such securities
without registration (at all times that the Company is subject to the reporting
requirements of the Exchange Act).
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5. Registration Procedures. In connection with the obligations of the Company with
respect to any registration pursuant to this Agreement, the Company shall:
(a) prepare and file with the Commission, as specified in this Agreement, a Registration
Statement, that complies as to form in all material respects with the requirements of the
applicable form and includes all financial statements required by the Commission to be
filed therewith;
(b) subject to Section 5(i) hereof, prepare and file with the Commission such amendments
and post-effective amendments to each such Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period, cause each such
Prospectus to be supplemented by any required prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 or any similar rule that may be adopted under the
Securities Act; and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the Holder;
(c) furnish to the Holder, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto and such other
documents as the Holder may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Shares; the Company consents to the use in compliance
with applicable law of any such Prospectus, including each preliminary Prospectus, by the
Holder, if any, in connection with the offering and sale of the Registrable Shares covered
by any such Prospectus;
(d) use commercially reasonable efforts to register or qualify, or obtain exemption from
registration or qualification for, all Registrable Shares by the time the applicable
Registration Statement is declared effective by the Commission under all applicable state
securities or “blue sky” laws of such jurisdictions as the Holder shall reasonably request
in writing, keep each such registration or qualification or exemption effective during the
period such Registration Statement is required to be kept effective and do any and all
other acts and things that may be reasonably necessary or advisable to enable the Holder to
consummate the disposition in each such jurisdiction of such Registrable Shares owned by
the Holder;
(e) notify the Holder promptly and, if requested, confirm such advice in writing (i)
when a Registration Statement has become effective and when any post-effective amendments
and supplements thereto become effective, (ii) of the issuance by the Commission or any
state securities authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, and (iii) of the happening
of any event during the period a Registration Statement is effective as a result of which
such Registration Statement or the related Prospectus contains any 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 not misleading, and at the request of the Holder,
promptly to furnish to the Holder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as
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may be necessary so that, as thereafter delivered to the purchaser of such 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 not
misleading;
(f) upon request by the Holder, furnish to the Holder copies of any request by the
Commission or any state securities authority of amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(g) use commercially reasonable efforts to avoid the issuance of, or if issued to obtain
the withdrawal of, any enjoining order suspending the use or effectiveness of a
Registration Statement or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Shares for sale in any jurisdiction, at the
earliest possible moment;
(h) upon request, furnish to the Holder, without charge, at least one conformed copy of
the Registration Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(i) upon the occurrence of any event contemplated by Section 5(e)(iii) hereof, use
commercially reasonable efforts to prepare a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Shares, such Prospectus will not contain any 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) if requested by the representative underwriters, if any, or the Holder, (i) promptly
incorporate in a prospectus supplement or post-effective amendment such information
relating to the representative of the underwriters, if any, or the Holder as they may
reasonably request be included therein, and (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the Company shall not be
required to take any action pursuant to this Section 5 that would, in the opinion of
counsel for the Company, violate applicable law;
(k) make available for inspection by representatives of the Holder and the
representative of any underwriters participating in any disposition pursuant to a
Registration Statement and any special counsel or accountant retained by such Holder or
underwriters, during normal business hours and upon reasonable notice, all financial and
other records, corporate documents and properties of the Company reasonably related to the
Registration Statement and cause the respective officers, directors and employees of the
Company to supply all information reasonably requested by any such representatives, the
representative of the underwriters, the special counsel or accountants in connection
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with and reasonably related to the Registration Statement; provided, however, that all such
records, documents or information provided by the Company that have not been made generally
available to the public shall be held and treated as confidential by such representatives,
representative of the underwriters, special counsel or accountants and shall not be
disclosed to any other person unless (i) the disclosure of such records, documents or
information is necessary to avoid or correct a misstatement or omission in a Registration
Statement, or (ii) the release of such records, documents or information is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction;
(l) use commercially reasonably efforts to list all Registrable Shares on each
securities exchange or quotation system on which the Common Shares are then listed or are
contemplated to be listed in such Registration;
(m) otherwise use commercially reasonable efforts to comply with all applicable rules
and regulations of the Commission and make generally available to its security holders, as
soon as reasonably practicable, earnings statements covering at least 12 months that
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158;
(n) provide and cause to be maintained a transfer agent for all Registrable Shares
covered by any Registration Statement from and after a date not later than the effective
date of such Registration Statement; and
(o) in connection with any sale or transfer of Registrable Shares that will result in
such securities no longer being Registrable Shares, cooperate with the Holder and the
representative of the underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing the Registrable Shares to be sold, and to enable such
Registrable Shares to be in such denominations and registered in such names as the
representative of the underwriters, if any, or Holder may request at least two Business
Days prior to any sale of such Registrable Shares.
6. Certain Covenants of the Holder.
(a) The Holder acknowledges that the Company may require the Holder, as a condition to
the Company’s obligations pursuant to Sections 2, 3 and 5 hereof, to furnish to the Company
such information regarding itself, the securities of the Company held by it and the
proposed method of distribution by the Holder; and the Holder agrees to provide such
information as the Company may from time to time reasonably request in writing or as shall
be required to effect the Registration of their Registrable Shares. The Holder further
agrees to furnish promptly to the Company in writing all information required from time to
time to make the information previously furnished by the Holder not misleading.
(b) The Holder agrees that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Section 5(e)(iii) hereof, such Holder will
immediately discontinue disposition of Registrable Shares pursuant to a Registration
Statement until the Holder’s receipt of the copies of the supplemented or amended
Prospectus. If so directed by the Company, the Holder will deliver to the Company (at
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the expense of the Company) all copies in its possession, other than permanent
file copies then in the Holder’s possession, of the Prospectus covering such Registrable
Shares current at the time of receipt of such notice.
7. Suspension Period.
(a) Following the effectiveness of a Registration Statement (and the filings with any
state securities commissions), the Company may direct the Holder to suspend sales of the
Registrable Shares for such times as the Company deems necessary or advisable, including
for up to sixty (60) days in any twelve (12) month period in the case of pending
negotiations relating to, or consummation of, a transaction or the occurrence of an event
(i) that would require additional disclosure of material information by the Company in the
Registration Statement (or such state filings), (ii) as to which the Company has a bona
fide business purpose for preserving confidentiality, or (iii) that renders the Company
unable to comply with Commission requirements, in each case under circumstances that would
make it impractical or inadvisable to cause the Registration Statement (or such state
filings) to become effective, or to promptly amend or supplement the Registration Statement
on a post-effective basis, as applicable.
(b) In the case of an event that causes the Company to suspend sales by Holders pursuant
to an effective Registration Statement (a “Suspension Event”), the Company may give
notice (a “Suspension Notice”) to the Holder to suspend sales of the Registrable
Shares so that the Company may correct or update the Registration Statement (or such state
filings); provided, however, that such suspension shall continue only for so long as the
Suspension Event or its effect is continuing. The Holder shall not effect any sales of the
Registrable Shares pursuant to such Registration Statement (or such state filings) at any
time after it has received a Suspension Notice from the Company. If so directed by the
Company, the Holder will deliver to the Company all copies of the Prospectus covering the
Registrable Shares held by it at the time of receipt of the Suspension Notice. The Holder
may recommence effecting sales of the Registrable Shares pursuant to the Registration
Statement (or such state filings) following further notice to such effect (an “End of
Suspension Notice”) from the Company, which End of Suspension Notice shall be given by
the Company promptly following the conclusion of any Suspension Event.
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8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless Holder and respective officers,
managers, partners, employees, representatives and agents of the Holder (including any
underwriter or placement agent acting on behalf of Holder) (the “Holder Indemnified
Parties”), as follows:
(i) from and against any and all loss, claim, liability, damage and expense
whatsoever (collectively, “Damages”), as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Registrable
Shares were registered under the Securities Act including all documents incorporated
therein by reference, or the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein, not
misleading or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement thereto),
including all documents incorporated therein by reference, or the omission or
alleged omission to state 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;
(ii) from and against any and all Damages, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any
claim whatsoever, in each case based upon any such untrue statement or omission, if
such settlement is effected with the written consent of the Company (which consent
shall not be unreasonably withheld);
(iii) from and against any and all expenses whatsoever (including reasonable
fees and disbursements of counsel), as incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, in each case whether or not a party, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above; and
(iv) provided that such indemnity pursuant to this Section 8(a) shall not apply
to the Holder with respect to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(b) The Holder agrees to indemnify and hold harmless the Company, each of its directors
and officers (including each officer of the Company who signed the Registration Statement) and any underwriter (the “Company Indemnified Parties”)
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against any and all Damages described in the indemnity contained in Section 8(a) hereof
(provided, however, that any settlement described in Section 8(a)(ii) hereof is effected
with the written consent of the Holder, which consent shall not be unreasonably withheld),
as incurred, but only with respect to such untrue statement or omission, or alleged untrue
statements or omissions, made in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Holder expressly for use in such
Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto). If the Registrable Shares are registered in an Underwritten Offering,
the Holder shall be required to agree to such indemnification provisions as may be required
by the underwriter in connection with such Underwritten Offering.
(c) Each Indemnified Party shall give reasonably prompt notice to each indemnifying
party of any action or proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not relieve it from
any liability that it may have under this Agreement except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. If the
indemnifying party so elects within a reasonable time after receipt of such notice, the
indemnifying party may assume the defense of such action or proceeding at such indemnifying
party’s own expense with counsel chosen by the indemnifying party and approved by the
Indemnified Party or parties in such action or proceeding, which approval shall not be
unreasonably withheld; provided, however, that if such Indemnified Party or parties
reasonably determines that a conflict of interest exists where it is advisable for such
Indemnified Party or parties to be represented by separate counsel or that, upon advice of
counsel, there may be legal defenses available to them that are different from or in
addition to those available to the indemnifying party, then the indemnifying party shall
not be entitled to assume such defense and the Indemnified Party or parties shall be
entitled to one separate counsel at the indemnifying party’s expense. If an indemnifying
party is not entitled to assume the defense of such action or proceeding as a result of the
proviso to the preceding sentence, such indemnifying party’s counsel shall be entitled to
conduct such indemnifying party’s defense, and counsel for the Indemnified Party or parties
shall be entitled to conduct the defense of such Indemnified Party or parties, it being
understood that both such counsel will cooperate with each other to conduct the defense of
such action or proceeding as efficiently as possible. If an indemnifying party is not so
entitled to assume the defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the indemnifying
party or parties will pay the reasonable fees and expenses of counsel for the Indemnified
Party or parties. In such event, however, no indemnifying party will be liable for any
settlement effected without the written consent of such indemnifying party. No
indemnifying party shall, without the consent of the Indemnified Party, consent to entry of
any judgment or enter into a settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect of such claim or litigation. If an indemnifying party is entitled
to assume, and assumes, the defense of such action or proceeding in accordance with this
paragraph, such indemnifying party shall not be liable
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for any fees and expenses for counsel for the Indemnified Parties incurred thereafter in
connection with such action or proceeding.
(d) The obligations of the Company and the Holder under this Section 8 shall survive the
completion of any offering of Registrable Shares pursuant to a Registration Statement and
otherwise.
9. Termination of the Company’s Obligations. The Company shall have no obligations
pursuant to this Agreement with respect to any Shares proposed to be sold by the Holder in a
Registration pursuant to this Agreement if, in the opinion of counsel to the Company, all such
Shares proposed to be sold by the Holder are no longer Registrable Shares.
10. Subsequent Registration Rights. After the date of this Agreement, the Company
may, without the prior written consent of the Holder, enter into an agreement with any holder or
prospective holder of any securities of the Company that would allow such holder or prospective
holder to include, on a pari passu basis, such securities in any registration filed pursuant to
this Agreement or that includes for registration Registrable Shares, and such holder or prospective
holder may include, on a pari passu basis, such securities in any such registration, which may
reduce proportionately the amount of the Registrable Shares of the Holder that is included therein.
11. [Intentionally Omitted]
12. Waiver and Amendment. No provision of this Agreement may be waived, amended or
modified except pursuant to an agreement in writing entered into by the Company and the Holder.
13. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Company and the Holder, and their respective successors and assigns, provided,
however, that (a) the Company may assign its rights or obligations hereunder to any successor to
the Company’s business or with the prior written consent of the Holder, and (b) the Holder may
assign its rights under this Agreement to any transferee of its Shares provided such transferee
agrees to be bound by all of the obligations of the transferring Holder under this Agreement.
14. Notices. All notices, requests, demands and other communications required or
permitted hereunder shall be in writing, and shall be deemed to be given or delivered when actually
received by the party to whom directed, or, if earlier and regardless of whether actually received,
on the third day after deposit in a regularly maintained receptacle for the United States mail,
registered or certified, postage fully prepaid, addressed to the party to whom directed at its
address set forth below or at such other address as such party may have previously specified by
notice actually received by the other party, or by fax transmission with a confirmation of receipt
generated by the sender’s facsimile machine:
| If to the Company: | Origen Financial L.L.C. | |||
| 00000 Xxxxxxxx Xxxx | ||||
| Xxxxx 0000 | ||||
| Xxxxxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxxxx X. Xxxxx | ||||
| Fax No.: (000) 000-0000 |
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| With a copy to: | Jaffe, Raitt, Heuer & Xxxxx, PC | |||
| 00000 Xxxxxxxx Xxxx | ||||
| Xxxxx 0000 | ||||
| Xxxxxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxxx Sugar | ||||
| Fax. No.: (000) 000-0000 | ||||
| If to the Holder: | Xxxxxxx X. Xxxxxxxx Trust u/a/d 12/13/04 | |||
| 0000 Xxxxxx Xxxx | ||||
| Xxxxxx Xxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxxxxxx X. Xxxxx | ||||
| Fax No.: (000) 000-0000 |
Except as otherwise provided in this Agreement, all such communications shall be deemed to have
been duly given (a) when delivered by hand, if personally delivered, (b) one Business Day after
being timely delivered to a next-day air courier, (c) five Business Days after being deposited in
the mail, postage prepaid, if mailed, (d) when answered back, if telexed, or (e) when receipt is
acknowledged by the recipient’s telecopier machine or otherwise, if telecopied.
15. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Michigan and the applicable laws of the United States of America.
16. [Intentionally Omitted]
17. Severability. If any provision of this Agreement is held to be illegal, invalid
or unenforceable under present or future laws, such provision shall be fully severable and the
remaining provisions of this Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance.
18. Counterparts. This Agreement may be separately executed in any number of
counterparts, each of which shall be an original, but all of which, taken together, shall be deemed
to constitute one and the same instrument.
19. Facsimile Documents, Electronic Documents and Signatures. For purposes of
finalizing this Agreement, if this document or any document executed in connection with it is
transmitted by facsimile or other electronic transmission, it shall be treated for all purposes as
an original document. Additionally, the signature of any party on this document transmitted by way
of a facsimile machine or other electronic communication shall be considered for all purposes as an
original signature. Any such faxed document or electronic document shall be considered to have the
same binding legal effect as an original document. At the request of any party, any faxed document
or electronic document shall be re-executed by each signatory party in an original form.
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20. Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the terms of this Agreement. All references made in this
Agreement to “Section” refer to such Section of this Agreement, unless expressly stated otherwise.
21. Acknowledgement. The Holder acknowledges and agrees that: (i) it has been advised
and understands that a conflict exists between its interest and the interest of the Company; (ii)
it has been advised to seek the advice of independent counsel; and (iii) it has obtained the advice
of independent counsel or decided not to engage independent counsel.
22. Expenses. The Company shall pay all Registration Expenses in connection with the
registration of the Registrable Shares pursuant to this Agreement. The Holder shall pay all
broker’s commissions and transfer taxes, if any, related to the sale or disposition of such
Holder’s Registrable Shares pursuant to any Registration Statement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first written above.
| COMPANY: | ||||
| ORIGEN FINANCIAL, INC. | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: Xxxxxx Xxxxx Title: Chief Executive Officer |
||||
| HOLDER: | ||||
| XXXXXXX X. XXXXXXXX TRUST U/A/D 12/13/04 |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxxx | ||||
| Title: | Trustee | |||
Signature Page to Registration Rights Agreement
