EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
BETWEEN
IMPAC COMMERCIAL HOLDINGS, INC.
AND
FORTRESS PARTNERS, L.P.
DATED AS OF
MAY 5, 1999
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of May 5, 1999, by and between IMPAC COMMERCIAL HOLDINGS, INC., a
Maryland corporation (the "Company"), and FORTRESS PARTNERS, L.P., a Delaware
partnership ("Fortress").
1. Consideration. Pursuant to that certain Series B 8.5% Cumulative
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Convertible Preferred Stock Purchase Agreement, dated the date hereof (the
"Stock Purchase Agreement"), Fortress and the Company have agreed to enter into
this Agreement to provide for the registration rights set forth herein and the
parties' respective obligations hereunder in consideration of the mutual
covenants contained herein. This Agreement is a condition to the closing under
the Stock Purchase Agreement.
2. Definitions. The following definitions shall apply in addition to those
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terms defined elsewhere herein:
a. "Common Stock" means the Company's Common Stock, $.01 par value per
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share.
b. "Continuous Offering" means an Offering pursuant to Rule 415 under the
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Securities Act, 17 C.F.R. 230.415, or any successor rule of the SEC, if
applicable.
c. "Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations promulgated thereunder.
d. "Holders" means any holder of the Registrable Securities.
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e. "Offering" means any public offering of the Common Stock of the
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Company, and any other method of disposition of the Common Stock of the Company
that is subject to the registration requirements of the Securities Act or any
other applicable federal or state statute or regulation.
f. "Offering Documents" means all documents relating to an Offering which
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are required to be filed with any governmental agency or authority or to be
delivered to any Person to whom securities of the Company are offered for sale
or sold, including, without limitation, Registration Statements, Prospectuses,
and preliminary Prospectuses, and all material incorporated by reference
therein, and any schedule or exhibit to any of the foregoing, in each case as
such documents may be amended from time to time.
g. "Party" means Fortress or the Company and "Parties" means both
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Fortress and the Company.
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h. "Person" means any individual, corporation, partnership, limited
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liability company, association, trust or unincorporated association.
i. "Prospectus" means the prospectus included in a Registration
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Statement, relating to an Offering in which Common Stock is included, as amended
or supplemented by a prospectus supplement, and all other amendments and
supplements to the Prospectus, including posteffective amendments, and all
material incorporated by reference in such Prospectus.
j. "Registration Expenses" means, with respect to an Offering, any and
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all expenses incident to the Company's performance of or compliance with the
provisions of this Agreement, including without limitation (a) fees for any
filings required to be made with the National Association of Securities Dealers,
Inc., or the SEC in connection with such Offering, and any other registration
and filing fees, (b) all fees and expenses of complying with securities or blue
sky laws (including reasonable fees and disbursements of one counsel in
connection with blue sky qualifications of the Common Stock to be included in
such Offering), (c) all printing, messenger, telephone, and delivery expenses,
(d) all fees and expenses incurred in connection with the listing of the Common
Stock to be included in such Offering on any securities exchange, and (e) the
reasonable fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such performance and
compliance. Registration Expenses shall not include underwriting discounts and
commissions.
k. "Registration Statement" means a registration statement filed with the
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SEC pursuant to the Securities Act, relating to an Offering in which Common
Stock is included, including any pre- or post-effective amendment thereto, the
Prospectus included therein, and all material incorporated by reference therein,
and any schedule or exhibit to any of the foregoing.
l. "Registrable Securities" means the Common Stock issuable upon
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conversion of 479,999 shares of Series B Preferred Stock originally issued to
Fortress on the date hereof that are owned by the Holders, and any Common Stock
of the Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Common Stock, excluding in all cases, however, any Registrable Securities sold
by a person in a transaction in which his rights under this agreement are not
assigned.
m. "SEC" means the Securities and Exchange Commission.
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n. "Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations promulgated thereunder.
o. "Securities Offering Regulations" means any regulations promulgated by
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any agency or authority of the United States government, under the Securities
Act, or any statute hereafter enacted into law, relating to or governing an
Offering of securities by the Company.
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p. "Series B Preferred Stock" means the Series B 8.5% Cumulative
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Convertible Preferred Stock, $.01 par value per share.
3. a. Incidental Registration Rights. If the Company proposes to make an
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Offering of its Common Stock and to prepare Offering Documents not required
pursuant to Paragraph 4 (other than any registration by the Company on Form S-8
or a successor or substantially similar form of (A) an employee stock option,
stock purchase or compensation plan or securities issued or to be issued
pursuant to any such plan, or (B) a dividend investment plan), the Company will
give prompt written notice to each of the Holders (at their respective addresses
as they appear on the stock transfer records of the Company) of its intention to
do so and of the Holders's rights under this Paragraph 3. Upon the written
request of the Holders made within twenty (20) days after the receipt of any
such notice (which request shall specify the number of the Registrable
Securities intended to be disposed of by each Holder), the Company will include
in the Offering Documents relating to such Offering all Registrable Securities
that the Company has been requested to include by the Holders; provided, that if
at any time after giving written notice under this Paragraph 3 the Company shall
determine for any reason not to proceed with the proposed Offering, the Company
may, at its election, give written notice of such determination to the Holders
and thereupon shall be relieved of its obligations to the Holders with respect
to such proposed Offering under this Paragraph 3. Any Holder shall be entitled
to withdraw its request for the inclusion of Registrable Securities in an
Offering and withdraw from the Offering at any time before the time that the
Offering Documents, including any Registration Statement (if applicable), are
declared effective and the Offering has commenced.
b. Continuous Offering. If the Company intends to effect a Continuous
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Offering (other than any registration by the Company or a successor on Form S-3
regarding a dividend reinvestment plan), the Company will give written notice
thereof to each of the Holders (at their respective addresses as they appear on
the stock transfer records of the Company) and include in such Offering all of
the Registrable Securities which each Holder elects to include in such Offering.
During the period in which a Registration Statement (if applicable) with respect
to a Continuous Offering is effective, if a Holder desires to sell Registrable
Securities in a transaction covered by such Registration Statement, it shall
give notice to the Company of the proposed date of such sale at least thirty
(30) days before such proposed date of sale, and the Company shall take all
actions necessary to permit such sale. Within fifteen (15) days of receipt of
notice of a proposed sale by a Holder, the Company will advise each Holder
either that it has no objection of such a registered sale or that such a
registered sale should be delayed (but in no event for more than 60 days), on
the basis either that the Company is involved in a confidential proposed
transaction or negotiations therefor (which have been previously disclosed to
the Company's Board of Directors) which would not require the Company to make or
amend any public filings under the securities laws at that time, or that such
sale would have a material adverse effect upon the Company's ability to access
the capital markets. Any determination to delay must be made in good faith by a
majority of the Board of Directors. If the Company has not objected to such
proposed registered sale as permitted in this subparagraph (b) within such
fifteen (15) day period, the Company shall take all actions necessary to permit
such sale on the proposed date of sale pursuant to such Registration Statement.
c. Underwritten Offerings. In the case of an underwritten Offering
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initiated by the Company under this Paragraph 3, including underwritten
Offerings effected as part of a Continuous
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Offering, the underwriter(s) and the managing underwriter shall be selected by
the Company. If the managing underwriter advises the Company in writing that, in
its opinion, the number of Registrable Securities and securities of the Company,
if any, being sold exceeds the number that can be sold in such Offering, so as
to be likely to have an adverse effect on the price at which the Company can
sell securities for its own account, then there shall be included in such
Offering (and in the Offering Documents) first, securities of the Company being
sold for its own account, and second, the maximum number of Registrable
Securities requested to be included in such Offering which, in the opinion of
such managing underwriter, can be sold without have such adverse effect on such
price. If Registrable Securities are so excluded from registration in an
Offering, the Company shall, upon the request of Holders owning at least 50% or
more of the aggregate of the shares of Common Stock into which the Series B
Preferred Stock have been, or can be, converted, use its reasonable efforts to
effect a registration with the SEC or take such actions as shall be reasonably
required to effect an Offering (in the event the Registrable Securities are
already registered with the SEC) in respect of such excluded Registrable
Securities as soon as practicable after consummation of such Offering. A Holder
may withdraw its Registrable Securities from such subsequent Offering without
costs or penalty at any time before the effective date of the Registration
Statement relating to such Offering.
d. Expenses. In connection with any offering of Registrable Securities
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in connection with a new issuance of Common Stock by the Company, the Company
shall pay all Registration Expenses.
e. Requests to include the Registrable Securities in an Offering pursuant
to this Section 3 shall be unlimited.
4. Demand Registration Rights. The Holders, without limitation as to any
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other method of disposition available to it, shall be entitled to dispose of any
or all of the Registrable Securities then held by them in accordance with the
provisions of this Paragraph 4.
a. Requests by The Holders. Upon the receipt by the Company of written
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notice from Holders owning at least 50% or more of the aggregate of the shares
of Common Stock into which the Series B Preferred Stock have been, or can be,
converted, of their intent to sell all or part of their Registrable Securities
in an Offering subject to this Paragraph 4 at least 30 days before such proposed
date of sale, and specifying both the number of Registrable Securities to be
sold and the intended method of disposition, the Company will use its best
efforts to register such Registrable Securities so as to permit as soon as
practicable the requested sale of the Registrable Securities. Within fifteen
(15) days of receipt of notice of a proposed sale by such Holders, the Company
will advise such Holders either that it has no objection of such a registered
sale or that such a registered sale should be delayed for up to four months, on
the basis either the Company is involved in a confidential proposed transaction
or negotiations therefor (which have been previously disclosed to the Company's
Board of Directors) which would not require the Company to make or amend any
public filings under the securities laws at that time. If the Company has not
objected to such proposed registered sale as permitted in this subparagraph (a)
within such fifteen (15) day period, the Company shall take all actions
necessary to permit such sale on the proposed date of sale pursuant to such
Registration Statement. If, at any time after giving 30 days written notice
under this Paragraph 4, all such Holders
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shall notify the Company in writing that they have determined for any reason not
to proceed with the proposed Offering, then the Company shall terminate such
Offering.
b. Limitation on Requests and Payment of Registration Expenses. The
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Holders shall be entitled to make a request to the Company to register
Registrable Securities pursuant to the provisions of this Paragraph 4 on no more
than two occasions. The Company shall not be required to register Registrable
Securities in accordance with the provisions of Paragraph 4(a) if there is
outstanding at the time of the request an effective Registration Statement for a
Continuous Offering and the Holders can dispose of Registrable Securities in
accordance with Paragraph 3(b). Once all Registrable Securities are covered by
an effective Registration Statement, the Company shall not be required to
register any Registrable Securities. The Company will pay all Registration
Expenses in connection with the Offering of Registrable Securities requested by
the Holders pursuant to the second sentence of Paragraph 3(b) or this Paragraph
4. Any Offering abandoned or terminated by the Holders after its filing in
accordance with the provisions of Paragraph 4(a) shall be deemed to be a request
pursuant to this Paragraph 4. Any Offering abandoned or terminated by the
Company after filing shall not be deemed a request pursuant to this Paragraph 4.
c. Selection of Underwriters. If the Holders specify in the notice
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delivered to the Company pursuant to Paragraph 4 that they intend to sell
Registrable Securities in an underwritten Offering pursuant to the second
sentence of Paragraph 3(b) or Paragraph 4, the Holders shall be entitled to
select the underwriter(s) and managing underwriter which is also acceptable to
the Company. If the Company issues and sells securities of the same class as
the Registrable Securities contemporaneously with any Offering pursuant to
Paragraph 3(b) or this Paragraph 4, the Company shall (i) sell such securities
to the underwriter(s) selected by the Holders pursuant to this Paragraph 4(c) on
the same terms and conditions as apply to the Holders and (ii) execute and
deliver a copy of the underwriting agreement relating to such Offering. If the
managing underwriter advises the Holders and the Company in writing that, in its
opinion, the number of securities requested to be included in such Offering
exceeds the number that can be sold in such Offering, so as to be likely to have
an adverse effect on the price at which the Registrable Securities or securities
being offered by the Company can be sold, then there shall be included in such
Offering (and in the Offering Documents relating to such Offering) first, the
maximum number of Registrable Securities requested to be included in such
Offering by the Holders and second, the maximum number of securities, if any,
proposed to be sold by the Company for its own account or for the account of any
other holder of the Company's securities, which in the opinion of the managing
underwriter can be sold without having such adverse effect.
d. Registration on Form S-3. The Holders shall have the right to require
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the Company to register any or all of its shares on Form S-3 (or on Form S-1, if
Form S-3 is not available), including an Offering pursuant to Rule 415 of the
Securities Act.
5. The Company's Duties. If and whenever the Company is required to permit
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the Holders to effect any Offering as provided in Paragraphs 3 and 4, the
Company covenants and agrees that it will, as expeditiously as possible (but not
later than thirty (30) days after receipt of a request from the Holders), to
include Registrable Securities in a given Offering:
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a. (A) prepare all Offering Documents in accordance with all applicable
requirements of the Securities Act, and the Securities Offering Regulations,
including, if requested by the Holders and if permitted by the rules and
regulations of the SEC, a Registration Statement pursuant to Rule 415 of the
Securities Act or any successor rule of the SEC, with respect to such Offering
to permit the disposition of the Registrable Securities by the Holders in
accordance with the intended method of disposition (and, in the case of an
underwritten Offering, consistent in form, substance, and scope with customary
practice for the offering of securities of corporations by nationally recognized
investment banking firms), (B) file with the SEC such Offering Documents and all
other documents required to permit the disposition thereof; provided, that
before filing any such Offering Documents (including any documents incorporated
by reference therein), the Company will furnish to counsel(s) designated by the
Holders and to the underwriter(s), if any, copies of all such Offering
Documents, which Offering Documents shall be subject to the review of such
counsel(s) and the underwriter(s), if any, and, the Company shall make such
changes in such Offering Documents as are reasonably requested by such
counsel(s) or underwriter(s), and (C) use its best efforts to have such Offering
Documents declared effective by, and obtain all approvals from the SEC to the
extent necessary to permit the Offering as promptly as practicable (but in no
event more than 120 days subsequent to the initial filing of the Offering
Documents with the SEC, if such Offering Documents are subject to review by the
SEC); provided, however, that the Company may discontinue any Offering that is
being effected pursuant to Paragraph 3 at any time before the effective date of
the related Offering Documents; and provided, further, that the Company shall
not file any Offering Document which shall be disapproved by the Holders within
a reasonable period after the same has been provided for review;
b. thereafter, prepare and file with the SEC such amendments and post-
effective amendments to the Offering Documents as may be necessary to keep the
Offering Documents continuously effective and cause the Offering Documents to be
supplemented by any required supplement, and as so supplemented to be filed, if
required, with the SEC during the period ending on the later of (i) such time as
all of the Registrable Securities covered by such Offering Documents have been
disposed of in accordance with the intended method of disposition set forth in
such Offering Documents or, in the case of an Offering made pursuant to Rule 415
under the Securities Act or any successor rule of the SEC (if applicable), if
securities remain unsold at the expiration of the Offering, such time as the
Company shall file, with the consent of such Holders, a post-effective amendment
with the SEC deregistering the securities which remain unsold at the termination
of the Offering or (ii) so long as a dealer is required to deliver a Prospectus
in connection with the Offering; provided, that before filing any such post-
effective amendment, the Company will furnish to counsel(s) designated by such
Holders and to the underwriter(s), if any, copies of the post-effective
amendment (including any other document proposed to be filed therewith), which
Offering Documents shall be subject to the review of such counsel(s) and the
underwriter(s), if any, and, where feasible, the Company shall make such changes
in such post-effective amendment as are reasonably requested by such counsel(s)
or underwriter(s);
c. furnish to the Holders and to the underwriter(s), if any, such number
of copies of the Offering Documents (including each amendment and supplement
thereto) as they may reasonably request in order to facilitate the disposition
of the Registrable Securities included in such Offering;
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d. register or qualify, or cooperate with the Holders, the
underwriter(s), if any, and their respective counsel in registering or
qualifying, all Registrable Securities covered by the Offering Documents for
offer and sale under the applicable securities or blue sky laws of such
jurisdictions as the Holders and the underwriter(s), if any, shall reasonably
request in writing, and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Holders and the underwriter(s),
if any, to consummate the disposition in such jurisdictions of the Common Stock
covered by the Offering Documents; provided however, that the Company shall not
be required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
subject the Company to any tax in any such jurisdiction where it is not then so
subject;
e. use its reasonable efforts to cause such Common Stock covered by the
Offering Documents to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the Holders and the
underwriter(s), if any, to consummate the disposition of such Common Stock;
f. cooperate reasonably with any managing underwriter to effect the sale
of any Registrable Securities, including but not limited to attendance of the
Company's executive officers at any planned "road show" presentations';
g. notify the Holders and the underwriter(s), if any, at any time when
the Offering Documents 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 in light of the circumstances then existing,
and at the request of the Holders or any underwriter, prepare and furnish to
such Person(s), such reasonable number of copies of any amendment or supplement
to the Offering Documents as may be necessary so that, as thereafter delivered
to the purchasers of such Common Stock, such Offering Documents shall not
include 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 not
misleading in light of the circumstances then existing, and to deliver to
purchasers of any other securities of the Company included in the Offering
copies of such Offering Documents as so amended or supplemented;
h. keep the Holders informed of the Company's best estimates of the
earliest date on which the Offering Documents will become effective, and
promptly notify the Holders of (A) the effectiveness of such Offering Documents,
(B) a request by the SEC for an amendment or supplement to such Offering
Documents, (C) the issuance by the SEC of an order suspending the effectiveness
of the Offering Documents, or of the threat of a proceeding for that purpose,
and (D) the suspension of the qualification of any securities included in the
Offering Documents for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose;
i. materially comply with the provisions of the Securities Offering
Regulations and the Securities Act with respect to the disposition of all
securities covered by the Offering Documents in accordance with the intended
method of distribution of the sellers thereof set forth in such Offering
Documents;
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j. use its reasonable efforts to list the securities proposed to be sold
in such Offering on the American Stock Exchange, or on such other securities
exchange on which the Common Stock is then listed, not later than the closing of
the Offering contemplated thereby;
k. enter into such customary agreements (including but not limited to an
underwriting agreement in customary form) and take such other reasonable actions
as the Holders or the underwriter(s), if any, reasonably request in order to
expedite or facilitate the disposition of such Common Stock;
l. obtain such "cold comfort" letter(s) from the Company's independent
public accountants, in customary form and covering matters of the type
customarily covered by "cold comfort" letter(s), as the Holders or the
underwriter(s), if any, shall reasonably request; and
m. upon prior notice, make available for reasonable inspection by any
underwriter(s) participating in any disposition to be effected pursuant to the
Offering Documents and by any attorney, accountant, or other agent retained by
any such Person(s), its financial and other records, pertinent corporate
documents and properties of the Company, and such opportunities to discuss the
business of the Company with its officers, directors, and employees and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinions of such underwriters' respective counsels,
to conduct a reasonable investigation; provided, that any records, information,
or documents that are designated by the Company in writing as confidential shall
be kept confidential by each such Person, unless disclosure of such records,
information, or documents is required by law, by judicial or administrative
order, or in order to defend a claim asserted against such Person in connection
with such Offering.
6. Information from the Holders.
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a. Information. The Company may require each Holder to furnish it with
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such informa tion regarding the Holders and regarding the method of distribution
as is pertinent to the disclosure requirements relating to the Offering of such
Common Stock as the Company may from time to time reasonably request in writing.
b. Use of Offering Documents Upon Notice of Defects. Each Holder agrees,
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and shall cause underwriter(s), if any, acting on its behalf to agree, that upon
receipt of any notice from the Company of the happening of any event of the kind
described in Paragraph 5(g), it will immediately discontinue the use of the
Offering Documents covering such Common Stock until the receipt by the Holders
and any such underwriter(s) of the copies of the supplemented or amended
Offering Documents contemplated by such clause and, if so directed by the
Company, the Holders will deliver and cause each underwriter, if any, to deliver
to the Company all copies, other than permanent file copies then in the
possession of the Holders or any such underwriter, of the Offering Documents
covering such Common Stock at the time of receipt of such notice. If the
Company shall give any such notice, the period mentioned in Paragraph 5(b) shall
be extended by the number of days during which offerings were suspended (i.e.,
the period from and including the date of the receipt of such notice pursuant to
Paragraph 5(g), to and including the date when the Holders shall have received
the copies of the supplemented or amended Offering Documents contemplated by
such clause).
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7. Resales; Reports Under Exchange Act. In order to permit the Holders to
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sell the Registrable Securities, if it so desires, pursuant to any applicable
resale exemption under the Securities Offering Regulations or the Securities
Act, the Company will:
a. comply with all rules and regulations of the SEC in connection with
use of any such resale exemption;
b. make and keep available adequate and current public information
regarding the Company;
c. file with the SEC in a timely manner, all reports and other documents
required to be filed under the Securities Act, the Exchange Act, or the
Securities Offering Regulations;
d. furnish to the Holders copies of annual reports required to be filed
under the Exchange Act and the Securities Offering Regulations; and
e. furnish to any Holder, upon request, (A) a copy of the most recent
quarterly report of the Company and such other reports and documents filed by
the Company with the SEC and (B) such other information as may be reasonably
requested to permit a Holder pursuant to any applicable resale exemption under
the Securities Act or the Securities Offering Regulations, if any.
8. Indemnification. The obligations of indemnification of the Parties set
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forth in this Paragraph 8 shall be in addition to any liability which any Party
may otherwise have to any other party.
a. Indemnification by the Company. The Company agrees to indemnify and
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hold harmless, to the full extent permitted by law, the Holders, any officers,
directors, employees and agents of a Holder, each Person who participates as an
underwriter in an Offering, each officer, director, employee or agent of such an
underwriter, and each Person who controls (within the meaning of the Securities
Act) any Holder and such an underwriter against any and all losses, claims,
damages, liabilities, expenses, joint or several, including without limitation
reasonable legal or other expenses incurred in connection with investigating or
defending against any loss, claim, damage, or liability, or action or proceeding
(whether commenced or threatened) in respect thereof, caused by any untrue
statement or alleged untrue statement of a material fact contained in any of the
Offering Documents relating to such Offering, 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 in light of the
circumstances under which they were made, except insofar as the same are (i)
made in reliance on and in conformity with any information about any Holder or
any underwriter furnished in writing to the Company by any Holder or any
underwriter specifically for inclusion in the Offering Documents relating to
such Offering or (ii) the result of the fact that any Holder or underwriter sold
Common Stock subject to an Offering to a Person to whom there was not sent or
given, at or before the written configuration of such sale, a copy of the final
Offering Documents, if the Company has previously furnished copies thereof to
such Holder or underwriter and such final Offering Documents corrected such
untrue statement or alleged untrue statement or omission or alleged omission.
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b. Indemnification by the Holders. Each Holder agrees to indemnify and
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hold harmless, to the full extent permitted by law, the Company, its officers,
directors, employees, and agents, each Person who participates as an underwriter
in an Offering, each officer, director, employee or agent of such an
underwriter, and each Person who controls (within the meaning of the Securities
Act) the Company and such underwriter against any and all losses, claims,
damages, liabilities, and expenses, joint or several, including without
limitation reasonable legal or other expenses incurred in connection with
investigating or defending against any loss, claim, damage, or liability, or
action or proceeding (whether commenced or threatened) in respect thereof,
caused by any untrue statement or alleged untrue statement of a material fact
contained in any of the Offering Documents relating to such Offering 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 in
light of the circumstances under which they were made, but only to the extent
that such untrue statement or omission is made in reliance on and in conformity
with any information furnished in writing by a Holder concerning the Holder to
the Company specifically for inclusion in the Offering Documents relating to
such Offering.
c. Notices of Claims; Procedures. Promptly after receipt by an
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indemnified party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Paragraph 8, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
indemnifying party of the commencement of such action; provided, that the
failure of the indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Paragraph 8, except
to the extent that the indemnifying party is actually materially prejudiced by
such failure to give notice. If any such action is brought against an
indemnified party (unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim) the indemnifying party will be entitled to participate
in and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that, any Person entitled to indemnification hereunder shall have the
right to employ separate counsel and to participate in the defense of such
claim, but the fees and expenses of such counsel shall be at the expense of such
Person unless (A) the indemnifying party has agreed to pay such fees or expenses
or (B) the indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to such Person or (C) in the
reasonable judgment of any such Person based upon advice of its counsel, a
conflict of interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such Person). If
such defense is not assumed by the indemnifying party, the indemnifying party
will not be subject to any liability for any settlement made without its consent
(but such consent will not be unreasonably withheld). No indemnifying party
will consent to entry of any judgment or enter into any settlement which does
not include, as an unconditional term thereof, the giving by the claimant or
plaintiff to such indemnified
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party of a release from all liability in respect to such claim or litigation. An
indemnifying party who is not entitled to or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel in each jurisdiction for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels.
d. Contribution. If the indemnification provided for this in this
------------
Paragraph 8 from the indemnifying party is unavailable to an indemnified party
hereunder (other than pursuant to the terms hereof) in respect of any losses,
claims, damages, liabilities, or expenses referred to therein, then the
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 fault of the indemnifying party and
indemnified parties in connection with the actions that resulted in such losses,
claims, damages, liabilities, or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified parties, and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such action. The
amount paid or payable by a Party as a result of the losses, claims, damages,
liabilities, and expense referred to above shall be deemed to include, subject
to the limitations set forth in this Paragraph 8(d) any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding. The Parties agree that it would not be just and equitable if
contributions pursuant to this Paragraph 8(d) were determined by a pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to above. No Person guilty of fraudulent
misrepresentation shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
e. This Paragraph 8 shall apply to each Registration Statement filed by
the Company pursuant to this Agreement that includes Registrable Securities.
9. Assignment of Registration Rights. The rights to cause the Company to
---------------------------------
register Registrable Securities pursuant to this Agreement may be assigned (but
only with all related obligations) by a Holder, provided that the Company is,
within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; and provided,
further, that such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act. For the purposes of
determining the number of shares of Registrable Securities held by a transferee
or assignee, the holdings of transferees and assignees of a partnership who are
partners or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Securities by gift, will or intestate succession) shall be
aggregated together and with the partnership; provided that all assignees and
transferees who would not qualify individually for
11
assignment of registration rights shall have a single attorney-in-fact for the
purpose of exercising any rights, receiving notices or taking any action under
this Agreement.
10. Miscellaneous.
-------------
a. Amendments and Waivers. Any term of this Agreement may be amended and
----------------------
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the holders of a majority of the
Registrable Securities then outstanding. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company.
b. Successors, Assigns and Transferees. This Agreement shall be binding
-----------------------------------
upon the parties hereto and their respective successors and assigns.
c. Notices. Any notice, request, demand, consent, approval or other
-------
communication permitted or required to be given to any of the parties hereunder
shall be deemed given when received, shall be in writing, and shall be delivered
in person or sent by certified mail, postage prepaid, or by private courier
service or by telecopy or telex, to such party at its address set forth below or
at such other address as such party may hereunder furnish in writing to the
other parties.
(i) if to the Company, to:
Impac Commercial Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
(ii) if to Fortress:
Fortress Investment Corp., as general partner
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
d. Headings. The headings in this Agreement are for the convenience of
--------
reference only and shall not limit or otherwise affect the meaning of the
interpretation of this Agreement or any provision hereof.
e. 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 in any respect for any reason, the validity,
legality and enforceability of such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired, it being intended
that all rights, powers and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
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f. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed shall be deemed an original, and
all such counterparts shall together constitute one and the same instrument.
g. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the United States of America and, in the absence of
controlling federal law, in accordance with the laws of the State of California.
h. Entire Agreement. This Agreement embodies the entire Agreement of the
----------------
parties hereto in relation to the subject matter hereof and supersedes all prior
understandings or agreements, oral or written, with respect thereto among the
parties hereto.
i. Certain Remedies. Without in any way limited the remedies otherwise
----------------
available under this Agreement, the parties hereto acknowledge that, in the
event of any breach or nonperformance by any party of the agreements or
covenants required by this Agreement to be performed or observed by it, the
other parties shall be entitled to such equitable remedies as may be
appropriate, including, without limitation specific performance.
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or
caused this Agreement to be executed on its behalf as of the date first written
above.
IMPAC COMMERCIAL HOLDINGS, INC.
By:/s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
FORTRESS PARTNERS, L.P.
By:/s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: C.O.O.
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