EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of October 8, 2003, by and between Origen Financial, Inc., a
Delaware corporation (the "Company"), Xxxxxx Brothers Inc., a Delaware
corporation (the "Agent"), on behalf of itself and as agent for the investors
listed on Schedule A hereto (the "Investors") and those persons listed on
Schedule B hereto (the "Direct Sale Shareholders").
WHEREAS, this Agreement is made in connection with the Purchase
Agreement (the "Purchase Agreement"), dated as of even date hereof between the
Company and the Agent. In order to induce the Agent to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights provided
for in this Agreement to the Agent and its respective direct and indirect
transferees, including without limitation, the Investors. The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
WHEREAS, this Agreement is made in connection with the Concurrent
Private Placement Agreement (the "Placement Agreement"), dated on or about the
date hereof between the Company and the Direct Sale Shareholders. In order to
induce the Direct Sale Shareholders to enter into the Placement Agreement, the
Company has agreed to provide the registration rights provided for in this
Agreement to the Direct Sale Shareholders. The execution of this Agreement is a
condition to the closing of the transactions contemplated by the Placement
Agreement.
Therefore, the parties hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" When used with reference to a specified person, (i) any
person that directly or indirectly controls or is controlled by or is under
common control with the specified person, (ii) any person that is an officer of,
partner in or trustee of, or serves in a similar capacity with respect to, the
specified person or of which the specified person is an officer, partner or
trustee, or with respect to which the specified person serves in a similar
capacity, and (iii) any person that, directly or indirectly, is the beneficial
owner of 5% or more of any class of equity securities of the specified person or
of which the specified person is directly or indirectly the beneficial owner of
5% or more of any class of equity securities.
"Agreement" This Registration Rights Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof.
"Business Day" With respect to any act to be performed hereunder, each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York or other applicable places where such
act is to occur are authorized or obligated by applicable law, regulation or
executive order to close.
"Closing Date" October 8, 2003 or such other time or such other date as
the Agent and the Company may agree.
"Closing Price" on any date shall mean the last sale price, regular
way, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to Common
Shares listed or admitted to trading on the New York Stock Exchange or, if the
Common Shares are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to Common Shares listed on the principal national securities
exchange on which the Common Shares are listed or admitted to trading or, if the
Common Shares are not listed or admitted to trading on any national securities
exchange, the last quoted price, or if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by the
Nasdaq Stock Market, Inc. or, if such system is no longer in use, the principal
other automated quotation system that may then be in use.
"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.
"Controlling Person" As defined in Section 8(a) hereof.
"Eligible Registrable Shares" shall mean with respect to the Investors,
all Registrable Shares held by the Investors and with respect to the Direct Sale
Shareholders, all Registrable Shares acquired pursuant to Placement Agreement.
"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" A holder of any Registrable Shares.
"Indemnified Party" As defined in Section 8(a) hereof.
"IPO" The initial public offering of the Company's Common Shares.
"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
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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 any similar provisions then in effect) or is
saleable pursuant to Rule 144 promulgated by the Commission pursuant to the
Securities Act during any three month period; provided that the restrictions set
forth in Section 9 are not applicable during such 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 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 fees and expenses of one (1) counsel
to the Holders as a class; provided, however, that Registration Expenses shall
exclude brokers' commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Shares by a 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.
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"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 being offered and sold pursuant to the terms
and conditions of the Purchase Agreement and the Placement Agreement.
"Stand-Off Period" As defined in Section 9 hereof.
"Suspension Event" As defined in Section 7(b) hereof.
"Suspension Notice" As defined in Section 7(b) hereof.
"Underwritten Offering" A sale of securities of the Company to an
underwriter or underwriters for reoffering to the public.
Section 2. Resale Registration
(a) Investor Resale Registration. Following the Closing Date,
but in no event later than the day that is the 120th day following the Closing
Date, the Company shall use its best efforts to file a Registration Statement
with the Commission on the appropriate form registering for resale all of the
Registrable Shares held by the Investors (the "Investor Resale Registration
Statement") in accordance with the method of disposition specified by the
Investors holding the majority of the Registrable Shares held by the Investors.
The Company shall use commercially reasonable efforts to cause the Investor
Resale Registration Statement to be declared effective within 90 days of filing
with the Commission and to remain effective until all Shares held by Investors
are no longer Registrable Shares.
(b) Direct Sale Shareholder Resale Registration. Following the
Closing Date, but in no event later than the day that is the 120th day following
the Closing Date, the Company shall use its best efforts to file a Registration
Statement with the Commission on the appropriate form registering for resale all
of the Eligible Registrable Shares held by the Direct Sale Shareholders (the
"Direct Sale Resale Registration Statement") in accordance with the method of
disposition specified by the Direct Sale Shareholders holding the majority of
the Eligible Registrable Shares held by the Direct Sale Shareholders. The
Company shall use commercially reasonable efforts to cause the Direct Sale
Shareholder Resale Registration Statement to be declared effective within 90
days of filing with the Commission and to remain effective until all Eligible
Registrable Shares held by the Direct Sale Shareholders are no longer
Registrable Shares.
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Section 3. IPO Registration.
(a) Piggyback Registration Rights and Notice of Registration.
The Company shall notify the Investors and the Direct Sale Shareholders
(collectively, the "Piggyback Holders") in writing at least twenty (20) days
prior to filing any Registration Statement under the Securities Act for purposes
of effecting its IPO (the "IPO Registration Statement") and will afford each
such Piggyback Holder an opportunity to include in such Registration Statement
all or any part of the Eligible Registrable Shares then held by such Piggyback
Holder. Each Piggyback Holder desiring to include in the IPO Registration
Statement all or any part of its Eligible Registrable Shares shall, within
fifteen (15) days after receipt of the above-described notice from the Company,
so notify the Company in writing, and in such notice shall inform the Company of
the number of Eligible Registrable Shares such Piggyback Holder wishes to
include in the IPO Registration Statement.
(b) Right to Terminate Registration. Notwithstanding any other
provision of this Agreement, the Company shall have the right to terminate or
withdraw the IPO Registration Statement initiated by it under this Section 3, at
any time, whether or not any Piggyback Holder has elected to include Eligible
Registrable Shares in such registration.
(c) Underwriting. If the IPO Registration Statement under which
the Company gives notice under this Section 3 is for an Underwritten Offering,
then the Company shall so advise the Piggyback Holders. In such event, any such
Piggyback Holder's right to include Eligible Registrable Shares in the IPO
Registration Statement shall be conditioned upon such Piggyback Holder's
participation in such underwriting and the inclusion of such Piggyback Holder's
Registrable Shares in the underwriting to the extent provided herein. All
Piggyback Holders proposing to distribute Eligible Registrable Shares through
such underwriting shall enter into an underwriting agreement in customary form
with the managing underwriter(s) selected for such underwriting. Notwithstanding
any other provision of this Agreement, if the managing underwriter(s)
determine(s) in good faith that due to marketing factors the number of Common
Shares to be underwritten should be limited, then the managing underwriter(s)
may exclude Shares (including Eligible Registrable Shares) from the registration
and the underwriting, and the number of Common Shares that may be included in
the registration and the underwriting shall be allocated, first, to the Company,
and second, to each of the Piggyback Holders requesting inclusion of their
Eligible Registrable Shares in the IPO Registration Statement on a pro rata
basis based on the total number of Eligible Registrable Shares then held by each
such Piggyback Holder. If any Piggyback Holder disapproves of the terms of any
such underwriting, such Piggyback Holder may elect to withdraw therefrom by
written notice to the Company and the underwriter, delivered at least ten (10)
Business Days prior to the anticipated effective date of the IPO Registration
Statement. Any Eligible Registrable Shares excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration.
Section 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
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to the public without registration, after such time as the Company becomes
subject to the reporting requirements of the Exchange Act, 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 a 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 a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration (at all times that the Company is subject to the reporting
requirements of the Exchange Act).
Section 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 selling Holder thereof;
(c) furnish to a Holder of Registrable Shares, without charge,
as many copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such 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 of Registrable Shares, if any, in connection with the offering and
sale of the Registrable Shares covered by any such Prospectus;
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(d) use its best 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 a Holder of Registrable Shares covered by a Registration
Statement 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 such Holder to
consummate the disposition in each such jurisdiction of such Registrable Shares
owned by such Holder;
(e) notify the Holders promptly and, if requested by a Holder,
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 any such Holder,
promptly to furnish to such Holder a reasonable number of copies of a supplement
to or an amendment of such Prospectus as 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 a Holder, furnish to such 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 its best 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 a 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 its best 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;
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(j) if requested by the representative underwriters, if any, or
any Holder, (i) promptly incorporate in a prospectus supplement or
post-effective amendment such information relating to the representative of the
underwriters, if any, or such 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
Holders and the representative of any underwriters participating in any
disposition pursuant to a Registration Statement and any special counsel or
accountant retained by such Holders 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 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 its best 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) provide a CUSIP number for all Registrable Shares, not
later than the effective date of the Registration Statement;
(n) 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;
(o) 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
(p) in connection with any sale or transfer of Registrable
Shares that will result in such securities no longer being Registrable Shares,
cooperate with the Holders 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
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to be in such denominations and registered in such names as the representative
of the underwriters, if any, or Holders may request at least two Business Days
prior to any sale of such Registrable Shares.
Section 6. Certain Covenants of Holders.
(a) Each Holder acknowledges that the Company may require the
Holder of Registrable Shares, 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 such Holder of such Registrable Shares; and
each 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. Each 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 such Holder not misleading.
(b) Each 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 such Holder's
receipt of the copies of the supplemented or amended Prospectus. If so directed
by the Company, such Holder will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Shares
current at the time of receipt of such notice.
Section 7. Suspension Period.
(a) Following the effectiveness of a Registration Statement
(and the filings with any state securities commissions), the Company may direct
the Holders to suspend sales of the Registrable Shares for such times as the
Company deems necessary or advisable, including for up to 60 days in any 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 Holders 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 Holders 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
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Notice from the Company. If so directed by the Company, the Holders will deliver
to the Company all copies of the Prospectus covering the Registrable Shares held
by them at the time of receipt of the Suspension Notice. The Holders 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.
Section 8. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless (i) the Agent, (ii) each Holder, (iii) each person,
if any, who controls (within the meaning of the Securities Act or the Exchange
Act) any of the foregoing (any of the persons referred to in this clause (iii)
being hereinafter referred to as a "Controlling Person"), and (iv) the
respective officers, directors, partners, employees, representatives and agents
of the Agent, each Holder, or any Controlling Person (any person referred to in
clause (i), (ii), (iii) or (iv) above may hereinafter be referred to as an
"Indemnified Party"), as follows:
(A) from and against any and all loss, claim,
liability, damage and expense whatsoever, 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;
(B) from and against any and all loss, liability,
claim, damage and expense whatsoever, 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);
(C) 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 (A) or (B)
above; and
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(D) 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) Indemnification by Holders. Each Holder severally 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),
each Controlling Person of the Company, any underwriter and any other Holder
selling securities under such Registration Statement or any of such other
Holder's partners, directors, officers or Controlling Persons, against any and
all loss, liability, claim, damage and expenses 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
such 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 Holders shall
be required to agree to such indemnification provisions as may be required by
the underwriter in connection with such Underwritten Offering.
(c) Conduct of Indemnification Proceedings. 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
11
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 for any fees and expenses
for counsel for the Indemnified Parties incurred thereafter in connection with
such action or proceeding.
(d) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity provided for in this
Section 8 is for any reason held to be unenforceable, unavailable or
insufficient although applicable in accordance with its terms, the Company and
each Holder shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by this Section 8 incurred by
the Company and the Holder in such proportion that the percentage of the
Holder's total contribution under this Section 8(d) shall correspond to the
percentage that the public offering price of the Holder's Registrable Shares
offered by and sold under the Registration Statement bears to the public
offering price of all securities offered by and sold under such Registration
Statement. Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each Controlling
Person of a Holder, if any, shall have the same rights to contribution as such
Holder, and each director of the Company, each officer of the Company who signed
the Registration Statement and each Controlling Person of the Company, if any,
shall have the same rights to contribution as the Company. Each party entitled
to contribution agrees that upon the service of a summons or other initial legal
process upon it in any action instituted against it in respect of which
contribution may be sought, it shall promptly give written notice of such
service to the party or parties from whom contribution may be sought, but the
omission so to notify such party or parties of any such service shall not
relieve the party from whom contribution may be sought from any obligation it
may have hereunder or otherwise.
(e) Survival. The obligations of the Company and the Holders
under this Section 8 shall survive the completion of any offering of Registrable
Shares pursuant to a Registration Statement and otherwise.
Section 9. Market Stand-Off Agreement
(a) Investors. In the event, and only in the event the IPO
Registration Statement is filed not later than the 120th day following the
Closing Date and becomes effective within 90 days of its filing, the Investors
shall not, to the extent requested by the Company or an underwriter of
securities of the Company, directly or indirectly sell, offer to sell (including
without limitation any short sale), grant any option, pledge or otherwise
transfer or dispose of any Shares purchased from the Agent pursuant to the
Purchase Agreement (other than (i) to donees, members or partners of the
Investor who agree to be similarly bound and (ii) Shares
12
registered on the IPO Registration Statement) for the period beginning 21 days
prior to the anticipated effective date of the IPO Registration Statement and
ending 60 days following the effective date of the IPO Registration Statement;
provided that, if following the IPO, the Closing Price of the Common Shares is
at least 120% of the initial public offering price for a period of five (5)
consecutive trading days following the date on which the Common Shares first
trade on a when issued or direct basis on a nationally recognized securities
exchange, the Investors' obligations under this Section 9(a) shall terminate
automatically at the close of business on the fifth consecutive trading day;
provided, that the Company may extend the Investor's obligations under this
Section 9(a) for a period not to exceed 15 days in its sole discretion by giving
written notice to the Investors prior to the termination of the Investors'
obligations under this Section 9(a).
(b) Direct Sale Shareholders. The Direct Sale Shareholders
shall not, to the extent requested by the Company or an underwriter of
securities of the Company, directly or indirectly sell, offer to sell (including
without limitation any short sale), grant any option, pledge or otherwise
transfer or dispose of any Shares acquired pursuant to the Placement Agreement
(other than (i) to donees, members or partners of a Direct Sale Shareholder who
agree to be similarly bound and (ii) Shares registered on the IPO Registration
Statement) for the following periods: (1) from the Closing Date until and
including the 90th day following the effective date of the Investor Resale
Registration Statement and (2) beginning 21 days prior to the anticipated
effective date of the IPO Registration Statement until and including the 180th
day following the effective date of the IPO Registration Statement (provided,
however, that the 180 days shall be reduced to 60 days in the case of Hermelin
Family Investments, LLC, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx and Xxxx Xxxxxxx);
provided, that the Company may extend the Direct Shareholders' obligations under
this Section 9(b) for a period not to exceed 15 days in its sole discretion.
(c) Legends. In order to enforce the foregoing covenant, the
Company shall have the right to place restrictive legends on the certificates
representing the Shares subject to this Section 9 and to impose stop transfer
instructions with respect to the Registrable Shares and such other Shares of
each Holder (and the Common Shares or securities of every other person subject
to the foregoing restriction) until the end of such period.
Section 10. 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 a 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 such Holder
are no longer Registrable Shares.
Section 11. Limitations on Subsequent Registration Rights. After the date of
this Agreement, the Company shall not, without the prior written consent of the
Holders of two-thirds of the then outstanding Registrable Shares, enter into any
agreement with any holder or prospective holder of any securities of the Company
that would allow such holder or prospective holder to include such securities in
any registration filed pursuant to this Agreement or that includes for
registration Registrable Shares, unless under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will not
reduce the amount of the Registrable Shares of the Holders that is included.
13
Section 12. Miscellaneous.
(a) Remedies. If the Company (i) fails to file any Registration
Statement required to be filed hereunder (each a "Required Registration
Statement") within its prescribed time frame, (ii) fails to cause a Required
Registration Statement to become effective within its prescribed time frame,
(iii) fails to maintain the effectiveness of a Required Registration Statement
for its prescribed time period or (iv) directs the Holders to suspend sales of
Registrable Shares under an effective Registration Statement for more than 60
days during any 12 month period (each of (i) through (iv) a "Section 12
Breach"), then each Holder that registered Registrable Shares on or was entitled
to register Registrable Shares on the Required Registration Statement to which
the Section 12 Breach pertains will be entitled as the sole and exclusive remedy
for such Section 12 Breach, to liquidated and agreed upon damages payable on
each Registrable Share for each day of any such Section 12 Breach. Such
liquidated damages shall be payable quarterly, in arrears within ten (10) days
of the end of each fiscal quarter and shall accrue at a daily rate of (i) $0.25
per Registrable Share per annum during the first 90 days of a Section 12 Breach,
(ii) $0.50 per Registrable Share per annum during days 91 to 180 of a Section 12
Breach, (iii) $0.75 per Registrable Share per annum during days 181 to 270 of
the Section 12 Breach and (iv) $1.00 per Registrable Share per annum after the
270th day of the Section 12 Breach.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, except in a written instrument executed by the Company and the
Holders of a majority of the then outstanding Registrable Shares. No waiver of
rights or consent to departure from the provisions of this Agreement shall be
effective unless set forth in a written instrument signed by the party to be
charged therewith; provided, however, that a waiver of rights or consent to
departure from the terms hereof on behalf of the Holders shall be effective if
signed by the Holders of a majority of the then outstanding Registrable Shares.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of the Registrable Shares whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders of the Registrable Shares may be given by
Holders of a majority of the Registrable Shares being sold by such Holders
pursuant to such Registration Statement. For the purposes of determining any
majority pursuant to this Section 12(b), Registrable Shares that are owned,
directly or indirectly, by either the Company or an Affiliate of the Company
shall not be deemed outstanding.
(c) Notices. All notices and other communications provided for
herein shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or telecopy;
(i) if to the Company, to 00000 Xxxxxxxx Xxxx, Xxxxx
0000, Xxxxxxxxxx, XX 00000, Attn: Chief Executive Officer;
(ii) if to the Agent, to 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, XX 00000, Attn: General Counsel's Office; and
14
(iii) if to any other person who is then the Holder of
any Registrable Shares, to the address of such Holder as it appears in the
Common Share register of the Company.
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.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Holder. Each Holder set forth
on Schedule A shall be deemed a third-party beneficiary of this Agreement. The
Company may assign its rights or obligations hereunder to any successor to the
Company's business or with the prior written consent of Holders of a majority of
the then outstanding Registrable Shares. Notwithstanding the foregoing, no
assignee of the Company shall have any of the rights granted under this
Agreement until such assignee shall acknowledge its rights and obligations
hereunder by a signed written agreement pursuant to which such assignee accepts
such rights and obligations. A 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.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same Agreement.
(f) Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
as applied to contracts made and performed within the State of Delaware without
regard to principles of conflicts of law. The parties hereto irrevocably consent
to the jurisdiction of the federal and state courts located in the State of
Delaware in any suit or proceeding based on or arising under this Agreement and
irrevocably agree that any and all claims arising out of this Agreement or
related to the transactions contemplated by this Agreement shall be determined
exclusively in such courts. The parties hereto irrevocably waive the defense of
an inconvenient forum to the maintenance of such suit or proceeding.
(g) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that
15
they have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(h) 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.
(i) Adjustment for Stock Splits, etc. Wherever in this
Agreement there is a reference to a specific number of shares or liquidated
damages payable with respect to any Registrable Shares, then upon the occurrence
of any subdivision, combination, or stock dividend of such shares, the specific
number of shares or amount of liquidated damages payable with respect to any
Registrable Shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the effect on the outstanding shares of such
class or series of stock by such subdivision, combination, or stock dividend.
(j) Expenses. As between the Company and the Holders, the
Company shall pay all Registration Expenses in connection with the registration
of the Registrable Shares pursuant to this Agreement. The Holder or Holders
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 PAGES FOLLOW]
16
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
COMPANY:
ORIGEN FINANCIAL, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: CEO
AGENT:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
DIRECT SALE SHAREHOLDERS:
SUN OFI, LLC
By: /s/ Xxxx Xxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
XXXXXXXX ORIGEN LLC
By: /s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: Manager
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
XXXXXXXX HOLDING, LLC
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Manager
HERMELIN FAMILY INVESTMENTS,
LLC
By: /s/ Xxxxx Xxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxx
Title: Manager
/s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx
19
SCHEDULE A
Hunter Global
Xxxxxxx Capital Management
Kensington Investment Group CA
Xxxxxx Brothers Inc.
Millennium Global New York
Perry Capital New York
SLS - Securities Company
CRA Real Estate
European Investors
TIAA CREF Investment Management
Millennium Partners New York
Polygon Global Opportunities U
Fidelity Management & Research
MAK Capital New York
Harbor Advisors New York
SCHEDULE B
Sun OFI, LLC
Xxxxxxxx Origen LLC
Xxxxxx Brothers
Xxxxxxxx Holding, LLC
Hermelin Family Investments, LLC
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
Xxxx Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
