EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of November 27, 1995 by and among AMRESCO, INC., a Delaware
corporation (the "Company"), and The Xxxxxxxx-Xxxxxxxx Company, Inc. ("R-H")
and Xxxxx Xxxxxxx Inc. ("Piper") (R-H and Piper are sometimes collectively
referred to herein as the "Agents") on behalf of the Persons (individually a
"Purchaser" and collectively the "Purchasers") who purchase the Company's 8%
Convertible Subordinated Debentures due 2005 (the "Debentures") pursuant to
Purchase Agreements (as defined below).
This Agreement is made pursuant to the various Purchase Agreements,
executed from time-to-time (the "Purchase Agreement"), by and between the
Company and the Purchasers. In order to induce the Purchasers to purchase the
Debentures, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Purchasers set forth in Section 2 of the
Purchase Agreement.
In consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by all
parties hereto, the parties, intending to be legally obligated, hereby agree
as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"ACT": The Securities Act of 1933, as amended.
"ADVICE": As defined in Section 5(b) hereof.
"AGENTS": The Xxxxxxxx-Xxxxxxxx Company, Inc. and Xxxxx Xxxxxxx Inc.
"AMENDMENT NOTICE": As defined in Section 5(b) hereof.
"BLOCKING NOTICE": As defined in Section 5(b) hereof.
"BROKER-DEALER": Any broker or dealer registered as such under the
Exchange Act.
"CLOSING DATE": The date of this Agreement.
"COMMISSION" or "SEC": The United States Securities and Exchange
Commission.
"DAMAGES PAYMENT DATE": With respect to the Debentures, each Interest
Payment Date.
"DTC": The Depository Trust Company.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended.
"HOLDER": As defined in Section 2(b) hereof.
"INDEMNIFIED HOLDER": As defined in Section 7(a) hereof.
"INDENTURE": The Indenture, dated as of November 27, 1995, among the
Company and First Interstate Bank of Texas, National Association as trustee
(the "Trustee") pursuant to which the Debentures are to be issued, as such
Indenture is amended or supplemented from time to time in accordance with the
terms thereof.
"INTEREST PAYMENT DATE": As defined in the Indenture and the Debentures.
"NASD": National Association of Securities Dealers, Inc.
"PERSON": An individual, partnership, corporation, trust or unincorporated
organization, or a government or an agency, authority or political subdivision
thereof.
"PROSPECTUS": The prospectus (including without limitation preliminary and
final prospectuses) included in a Resale Registration Statement, as amended or
supplemented, including post-effective amendments therein.
"PURCHASER": As defined in the preamble hereto.
"RECORD HOLDER": With respect to any Damages Payment Date relating to
Debentures, each Person who is a Holder of Debentures on the record date with
respect to the Interest Payment Date on which such Damages Payment Date shall
occur.
"REGISTRATION DEFAULT": As defined in Section 4 hereof.
"RESALE FILING DEADLINE": As defined in Section 3(a) hereof.
"RESALE REGISTRATION STATEMENT": Any registration statement of the
Company filed with the SEC relating to the registration for resale of
Transfer Restricted Securities pursuant to a registration statement which is
filed pursuant to the provisions of this Agreement, including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
"TERMINATION DATE": As defined in Section 3(a) hereof.
"TRANSFER RESTRICTED SECURITIES": Each share of Underlying Common
Stock, until the earliest to occur of (a) the date on which such Underlying
Common Stock has been effectively registered under the Act and disposed of in
accordance with a Resale Registration Statement or other applicable
registration statement, (b) the date on which such Underlying Common Stock is
eligible
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to be sold to the public pursuant to Rule 144 under the Act, or (c) the date
on which such Debenture has been redeemed or repurchased by the Company as
provided in the Indenture.
"UNDERLYING COMMON STOCK": The shares of common stock, par value $0.05 per
share, of the Company into which any Debenture may be converted.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING": An offering in
which securities of the Company are sold to an underwriter for reoffering to the
public pursuant to an effective registration statement filed with the
Commission.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS. A Person is deemed to be a holder (a "Holder") of Transfer
Restricted Securities or Debentures whenever such Person owns Transfer
Restricted Securities or Debentures, whether directly or through the DTC book-
entry system.
SECTION 3. RESALE REGISTRATION STATEMENT
(a) REGISTRATION. The Company shall, subject to compliance with
Regulation S promulgated under the Act, as amended from time to time:
(i) cause to be filed one Resale Registration Statement on S-3
pursuant to Rule 415 under the Act, on or prior to the 45th day after the
Closing Date (the "Resale Filing Deadline"), and, if necessary and to the
extent required by this Agreement, additional Resale Registration
Statements from time-to-time after the Resale Filing Deadline, all of which
shall provide for sales of Transfer Restricted Securities, provided that
the Holders thereof shall have timely provided the information required
pursuant to Section 3(b) hereof; and
(ii) use all reasonable efforts to cause the initial Resale
Registration Statement to be declared effective by the Commission on or
before the 180th day after the Closing Date.
The Company shall use all reasonable efforts to keep such Resale Registration
Statement continuously effective, supplemented and amended to the extent
necessary to ensure that it is available for resales of Transfer Restricted
Securities by Holders of Transfer Restricted Securities who have complied with
Section 3(b), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, until the earlier of (A) the third anniversary of
the Closing Date or (B) the date on which (i) all Transfer Restricted Securities
have ceased to be Transfer Restricted Securities and (ii) there remains
outstanding less than $1,000,000 principal amount of Debentures. The earlier of
the dates specified in clauses (A) and (B) in the immediately-preceding sentence
is referred to herein as the "Termination Date."
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(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted Securities in
any Resale Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within 20 business days after
receipt of a request therefor, such information, affidavits or other instruments
as the Company may reasonably request for use in connection with any Resale
Registration Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Transfer Restricted Securities shall be entitled to Liquidated
Damages pursuant to Section 4 hereof unless such Holder shall have timely
provided all such reasonably requested information. All information provided to
the Company by any Holder shall be accurate and complete in all material
respects and each Holder shall promptly notify the Company if any such
information becomes incorrect or incomplete.
SECTION 4. LIQUIDATED DAMAGES
Subject to Section 5(a)(iv) and to Section 5(b) of this Agreement,
if (i) the initial Resale Registration Statement required by this Agreement is
not filed with the Commission on or prior to the Resale Filing Deadline or (ii)
any Resale Registration Statement required by this Agreement is filed and
declared effective but thereafter, solely through the fault of the Company,
ceases to be effective or usable for its intended purpose without being restored
to effectiveness by amendment or otherwise within thirty (30) business days or
succeeded immediately by an additional Resale Registration Statement that cures
such failure and that is itself declared effective within thirty (30) business
days (each such event referred to in clauses (i) and (ii), a "Registration
Default"), the Company shall pay liquidated damages to each Holder of Transfer
Restricted Securities and to each Holder of Debentures with respect to the first
90-day period immediately following the occurrence of such Registration Default,
in an amount equal to $.05 per week per $1,000 principal amount of Debentures
outstanding or of the principal amount of the Debentures that previously were
converted into such Transfer Restricted Securities held by such Holder for each
week or portion thereof that the Registration Default continues. The amount of
the liquidated damages shall increase by an additional $.05 per week per $1,000
in principal amount of Debentures outstanding or of the principal amount of the
Debentures that previously were converted into such Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $.50
per week per $1,000 principal amount of Debentures outstanding or of the
principal amount of the Debentures that previously were converted into such
Transfer Restricted Securities. All accrued liquidated damages shall be paid to
Record Holders by the Company by Company check on each Damages Payment Date.
Following the cure of all Registration Defaults relating to any particular
Debentures or Transfer Restricted Securities, the accrual of liquidated damages
with respect to such Debentures or Transfer Restricted Securities will cease.
All payment obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such security shall have
been satisfied in full.
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SECTION 5. REGISTRATION PROCEDURES
(a) GENERAL PROVISIONS. In connection with any Resale Registration
Statement and any Prospectus required by this Agreement to permit the resale of
Transfer Restricted Securities, the Company shall:
(i) use all reasonable efforts to keep such Resale Registration
Statement continuously effective through the Termination Date, and upon the
occurrence of any event that would cause any such Registration Statement or
Prospectus (A) to contain a material misstatement or omission or (B) not to
be effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company shall, in the case of
clause (A), file promptly and as appropriate an amendment or supplement to,
or any filing incorporated by reference into, such Resale Registration
Statement, correcting any such misstatement or omission, and shall in the
case of either clause (A) or (B), use all reasonable efforts to cause any
such amendment to be declared effective and such Resale Registration
Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter (subject to Section 5(a)(iv)
and to Section 5(b) of this Agreement);
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the Resale Registration Statement as may be
necessary to keep the Resale Registration Statement effective through the
Termination Date and cause the Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Act in a timely manner;
(iii) advise the underwriter(s), if any, and selling Holders of
Transfer Restricted Securities promptly and, if requested by such Person in
writing, to confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and with
respect to any Resale Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Resale Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
or other order or action suspending the effectiveness of the Registration
Statement under the Act or of the suspension by any state securities or
Blue Sky commission of the exemption, qualification or registration of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, or (D)
of the existence of any fact or the happening or any event that makes any
statement of a material fact made in the Resale Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Resale Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order or other order or take
other action suspending the effectiveness of the Resale Registration
Statement, or any state securities commission or other regulatory authority
shall
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issue an order suspending the exemption, qualification or registration
of the Transfer Restricted Securities under state securities or
Blue Sky laws, the Company shall use all reasonable efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
(iv) furnish to either (A) the underwriter(s) on any specific Resale
Registration Statement or (B) the Agents if no other underwriter then is
acting as such with respect to any specific Resale Registration Statement,
before filing with the Commission, copies of any Resale Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Resale Registration Statement or Prospectus, which
documents will be subject to the review of such Agents or underwriter(s),
if any, for a period of at least five business days, and the Company will
not file any such Resale Registration Statement or Prospectus or any
amendment or supplement to any such Resale Registration Statement or
Prospectus to which a selling Holder of Transfer Restricted Securities
covered by such Resale Registration Statement or the underwriter(s), if
any, shall reasonably object within five business days after the receipt
thereof; PROVIDED, HOWEVER, that any delay in the effectiveness of a Resale
Registration Statement caused by such Agents' or Underwriter(s)' objections
shall not constitute a Registration Default hereunder. A selling Holder or
underwriter, if any, shall be deemed to have reasonably objected to such
filing if such Resale Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission;
(v) make available at reasonable times and upon reasonable notice for
inspection by the selling Holders, any underwriter participating in any
disposition pursuant to such Resale Registration Statement, and any
attorney or accountant retained by such selling Holders or any of the
underwriter(s), in each case subject to reasonable assurances of
confidentiality, and cause the Company's officers, directors and employees
to supply, all financial and other records, pertinent corporate documents
and properties of the Company reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such Resale
Registration Statement subsequent to the filing thereof and prior to its
effectiveness;
(vi) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Resale Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information (PROVIDED such information shall be accurate
and complete in all respects) as such selling Holders and underwriter(s),
if any, may reasonably request to have included therein, PROVIDED such
information is usual and customary in such a document, including without
limitation information relating to the "Plan of Offering" of the Transfer
Restricted Securities, information with respect to the amount of Transfer
Restricted Securities being sold to such underwriter(s), the purchase price
being paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
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(vii) furnish to each selling Holder and to either (A) the
underwriter(s) on any specific Resale Registration Statement or (B) the
Agents if no other underwriter then is acting as such with respect to any
specific Resale Registration Statement, without charge, one copy of the
Resale Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by reference
therein and all exhibits;
(viii) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; and the Company hereby consents to the use
of the Prospectus and any amendment or supplement thereto (other than in
those states or jurisdictions in which the Company has not complied with
or satisfied the requirements of the relevant "blue sky" securities laws)
by each of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(ix) enter into such agreements (including an underwriting agreement),
and make such representations and warranties, and take all other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any Resale Registration
Statement contemplated by this Agreement, to the extent reasonable and
customary in this type of offering and as may be reasonably requested by
the selling Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Resale Registration
Statement contemplated by this Agreement; and if the registration is an
Underwritten Registration, the Company shall:
(A) furnish to each selling Holder and each underwriter in such
substance and scope as they may reasonably request and as are
customarily made by issuers to underwriters in primary underwritten
offerings, upon the date of the effectiveness of the Resale
Registration Statement:
(1) a certificate, dated the date of effectiveness of the
Resale Registration Statement, as the case may be, signed by (i)
the President or any Vice President and (ii) a principal
financial or accounting officer of the Company, confirming, as of
the date thereof, the matters set forth in paragraph (d) of
Section 5 of the Placement Agreement and such other matters as
such parties may reasonably request;
(2) an opinion, dated the date of effectiveness of the
Resale Registration Statement, as the case may be, of the General
Counsel for the Company, covering the matters set forth in
paragraph (a) of Section 5 of the Placement Agreement and such
other matter as such parties may reasonably request, and in any
event including a statement to the effect that such counsel
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has participated in conferences with officers and other
representatives of the Company, the Purchasers' representatives
and the Purchaser's counsel in connection with the preparation of
such Resale Registration Statement and the related Prospectus and
has considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of
such statements; and that such counsel advises that, on the basis
of the foregoing, no facts came to such counsel's attention that
caused such counsel to believe that the applicable Resale
Registration Statement, at the time such Resale Registration
Statement or any post-effective amendment thereto become
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that
the Prospectus contained in such Resale Registration Statement as
of its date, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial data included in any
Resale Registration Statement contemplated by this Agreement or
the related Prospectus; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Resale Registration Statement, as the case
may be, from the Company's independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters by underwriters in connection with
primary underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Section 5(b)
of the Placement Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 7 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
pursuant to this clause (ix), if any.
(x) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s) may
8
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Resale Registration Statement;
PROVIDED, that the Company shall not be required to register or qualify
as a foreign corporation where it is not now so qualified or to take any
action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the Resale
Registration Statement, in any jurisdiction where it is not now so subject;
(xi) cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders or the
underwriter(s), if any, may reasonably request at least two business days
prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xii) use all reasonable efforts to cause the Transfer Restricted
Securities covered by the Resale Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the underwriter(s),
if any, to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in paragraph (x) above;
(xiii) if any fact or event contemplated by paragraph (b)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Resale Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the Purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(xiv) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use its reasonable best efforts to cause such Resale Registration
Statement to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;
(xv) otherwise comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon
as practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts Underwritten
Offering or (B) if not sold to underwriters in such an offering, beginning
with
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the first month of the Company's first fiscal quarter commencing after
the effective date of the Resale Registration Statement;
(xvi) cause all shares of Underlying Common Stock which are Transfer
Restricted Securities covered by the Resale Registration Statement to be
listed on each securities exchange or market, if applicable, on which
similar securities issued by the Company are then listed if requested by
the Holders of a majority in aggregate principal amount of the Debentures
or the underwriter(s) (if any) on any specific Resale Registration
Statement; and
(xvii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Sections 13, 14
and 15 of the Exchange Act for a period of three years from the Closing
Date.
(b) DISPOSITION NOTICE; BLOCKING NOTICE; AMENDMENT NOTICE. At least
five (5) business days prior to any disposition of Transfer Restricted
Securities, the Holder thereof shall advise the Company of the dates on which
such disposition is expected to commence and terminate, the number of
Transfer Restricted Securities expected to be sold, the method of
disposition, and such other information as the Company may reasonably request
in order to supplement the Prospectus in accordance with the rules and
regulations of the Commission. The Company may suspend dispositions under the
Resale Registration Statement and notify the Holders that they may not sell
Transfer Restricted Securities pursuant to any Resale Registration Statement
or Prospectus (a "Blocking Notice") if the Company's management determines in
its reasonable good faith judgment that the Company's obligation to ensure
that such Resale Registration Statement and Prospectus are current and
complete would require the Company to take actions that might reasonably be
expected to have a detrimental effect on any proposal, negotiations or plan
by the Company or any of its subsidiaries to engage in any acquisition of
assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer, reorganization or similar transaction; PROVIDED
that such suspension may not exceed 60 days. Each Holder of Transfer
Restricted Securities agrees by acquisition of a Transfer Restricted Security
that, upon receipt of a Blocking Notice or Notice from the Company of the
existence of any fact of the kind described in Section 5(a)(iii)(D) hereof
(an "Amendment Notice"), such Holder shall not dispose of, sell or offer for
sale Transfer Restricted Securities under any Resale Registration Statement
until such Holder receives (i) copies of the supplemented or amended
Prospectus or until counsel for the Company shall have determined that such
disclosure is not required due to subsequent events; (ii) notice in writing
(the "Advice") from the Company that the use of the Prospectus may be
resumed, and (iii) copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Company in
connection with a Blocking Notice or an Amendment Notice, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current immediately
prior to the time of receipt of such notice. In the event the Company shall
give any such notice, the time period regarding the effectiveness of such
Resale Registration Statement set forth in Section 3, shall be extended by
the number of days during the period from and including the date of the
giving of such notice to and including the date when each selling Holder
covered by such Resale Registration Statement shall have received the copies
of the supplemented or amended
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Prospectus, the Advice and any additional or supplemental filings that are
incorporated by reference in the Prospectus. Delivery of a Blocking Notice or
an Amendment Notice and the related suspension of any Resale Registration
Statement shall not constitute a Registration Default and shall not create
any obligation to pay liquidated damages under Section 4 hereof.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company regardless of whether a Resale
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any Holder
with the NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by the NASD));
(ii) all fees and expenses of compliance with federal securities, foreign
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including the printing of Prospectuses), messenger and delivery services and
telephone incurred by the Company; (iv) all fees and disbursements of counsel
for the Company and, subject to Section 6(b) below, the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection with
listing the shares of Underlying Common Stock on a national securities exchange
or automated quotation system pursuant to the requirements hereof; (vi) all fees
and disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance); and (vii) all fees and expenses of the Trustee
under the Indenture; PROVIDED, that the Company will not bear certain personal
expenses of a Holder who sells Transfer Restricted Securities, including
underwriting discounts, commissions, and messenger and delivery services and
telephone expenses incurred by such selling Holders.
The Company will, in any event, bear its internal expense (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit, all
Trustee fees and charges and the fees and expenses of any Person, including
special experts, retained by the Company.
(b) In connection with any Resale Registration Statement required by this
Agreement, the Company will reimburse the Holders of Transfer Restricted
Securities being resold for the reasonable fees and disbursements of not more
than one counsel (which fees and disbursements shall not exceed $5,000 in the
aggregate), which shall be such counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Resale Registration Statement is being prepared.
SECTION 7. INDEMNIFICATION
(a) The Company shall indemnify and hold harmless (i) each Holder and (ii)
each person, if any, who controls (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act) any Holder (any of the persons referred to in
this clause (ii) being hereinafter referred to as a "Controlling Person") and
(iii) the respective officers, directors, partners, employees, representatives
and agents of any Holder or any Controlling Person (any person referred to in
clause (i), (ii) or (iii)
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may hereinafter be referred to as an "Indemnified Holder"), to the fullest
extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and reasonable expenses (including without
limitation, reimbursement of all reasonable costs of investigating,
preparing, pursuing or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
including the reasonable fees and charges of one counsel to all Indemnified
Holders as a group) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Resale Registration Statement
or Prospectus (or any amendment or supplement thereto), or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses are caused
by an untrue statement or omission or alleged untrue statement or omission
that is made in reliance upon and in conformity with information relating to
any of the Holders furnished in writing to the Company by any of the Holders
expressly for use therein. In addition to any other information furnished in
writing to the Company by any of the Holders, the information in the Resale
Registration Statement under the captions "Selling Stockholders" (or any
similarly captioned section containing the information required pursuant to
Item 507 of Regulation S-K promulgated pursuant to the Act) and "Plan of
Distribution" (or any similarly captioned section containing information
required pursuant to Item 508 of Regulation S-K) shall be deemed information
furnished in writing to the Company by the Holders.
In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Company, such Indemnified Holder (or the Indemnified Holder controlled by such
Controlling Person) shall promptly notify the Company in writing (provided, that
the failure to give such notice shall not relieve the Company of its obligations
pursuant to this Agreement unless and to the extent materially and adversely
affected). Such Indemnified Holder shall have the right to employ its own
counsel in any such action and the fees and expenses of such counsel shall be
paid, as incurred, by the Company (regardless of whether it is ultimately
determined that an Indemnified Holder is not entitled to indemnification
hereunder); PROVIDED, that if the Indemnified Holder is not successful and it is
determined that such Indemnified Holder is not entitled to indemnification
hereunder, then such Indemnified Holder shall reimburse the Company for all
monies advanced by the Company to which such Indemnified Holder was not
entitled. The Company shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for such Indemnified Holders, which firm shall be designated by the Holders of a
majority of the securities that are subject to, or affected by, such action or
proceeding. The Company shall not be liable for any settlement of any such
action or proceeding effected with the Company's prior written consent, which
consent shall not be withheld unreasonably, and the Company will indemnify and
hold harmless any Indemnified Holder from and against any loss, claim, damage,
liability or reasonable expense by reason of any settlement of any action
effected with the prior written consent of the Company. The Company shall not,
without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to terminate
any
12
pending or threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
any Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company and its directors,
officers and any person controlling (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act) the Company, and its officers, directors,
partners, employees, representatives and agents, to the same extent as the
foregoing indemnity from the Company to each of the Indemnified Holders, but
only with respect to claims and actions based on information relating to such
Holder furnished in writing by such Holder expressly for use in any Resale
Registration Statement, including without limitation the information described
in the last sentence of the first paragraph of Section 7(a). In case any action
or proceeding shall be brought against the Company or its directors or officers
or any such Controlling Person in respect of which indemnity may be sought
against a Holder of Transfer Restricted Securities, such Holder shall have the
rights and duties given to each Holder by the preceding paragraph. In no event
shall the liability of any selling Holder hereunder be greater in amount than
the dollar amount of the proceeds received by such Holder upon the sale of the
securities giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under Section 7(a) or Section 7(b) hereof (other than by
reason of the exceptions provided therein) in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand, and the Holders on the other hand from their purchase of Transfer
Restricted Securities or if such allocation is not permitted by applicable law,
the relative fault of the Company on the one hand and of the Indemnified Holder
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand, and of the Indemnified Holder on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Indemnified Holder and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 7(a), any legal or other fees, expenses
or charges reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company and each Holder of Transfer Restricted Securities agree that it
would not be just and equitable if contribution pursuant to this Section 7(c)
were determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of
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allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities or expenses referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Xxxxxxx 0, xxxx of the Holders (and
its related Indemnified Holders) shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total discount
received by such Holder with respect to the securities exceeds the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 7(c) are several in proportion to the
respective amounts of securities held by each of the Holders hereunder and
are not joint.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchase of such Transfer Restricted Securities from such Holder,
the information required by Rule 144A(d)(4) under the Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in any underwriting arrangements provided by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting agreements.
SECTION 10. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Resale
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority of the
Transfer Restricted Securities included in such offering; PROVIDED, that such
investment bankers and managers must be reasonably satisfactory to the Company.
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SECTION 11. MISCELLANEOUS
(a) REMEDIES. The Company agrees that monetary damages (including the
liquidated damages contemplated hereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person, except as specifically disclosed in the final Offering
Memorandum. The rights granted to the Holders hereunder do not in any way breach
or conflict with and are not inconsistent with the rights granted to the Holders
of the Company's securities under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being resold pursuant to the Resale Registration Statement and
that does not affect directly or indirectly the rights of other Holders whose
securities are not reselling pursuant to such Resale Registration Statement may
be given by the Holders of a majority of the Transfer Restricted Securities
being resold pursuant to such Resale Registration Statement.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class or
certified mail, telex, telecopier, or reliable overnight delivery service, and
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) If to the Company:
AMRESCO, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
15
All such notices and communications shall be deemed to have been given: at
the time delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day,
if sent via a reliable overnight delivery service.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts by the parties hereto, 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.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICT
OF LAWS RULES THEREOF.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof, in any circumstances, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement, together with the other agreements
referred to in the respective Purchase Agreements, is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter hereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
AMRESCO, INC.
By: /s/ XXXXXX X. XXXX, XX.
-----------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Chairman & CEO
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
By: /s/ XXXXXX X. X'XXXXX, XX.
-----------------------------------
Name: Xxxxxx X. X'Xxxxx, Xx.
Title: Managing Director
XXXXX XXXXXXX INC.
By: /s/ XXXXX XXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx Xxxxxxxx
Title: Managing Director
17
