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EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as
of August 11, 1998, by and between AMRESCO, INC., a Delaware corporation (the
"Company"), Xxxxxxx Xxxxxxx (the "Principal Stockholder") and Xxxx Xxxxxxxx,
Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxx XxXxxxx, Xxx Xxxxx and Xxxxx Xxx Xxxxx and
Xxxxx Xxxx [ ](the "Other Stockholders"). The Principal Stockholder and
the Other Stockholders are referred to collectively herein as the
"Stockholders."
R E C I T A L S
A. This Agreement is entered into pursuant to the Agreement and Plan of
Merger dated as of July 14, 1998 (the "Merger Agreement"), by and among
the Company, MIC Acquisition, Inc., Mortgage Investors Corporation and
the Principal Stockholder.
B. The Merger Agreement provides for the issuance by the Company of an
aggregate of up to 1,804,442 shares of its common stock, par value
$0.05 per share (each share of such class being referred to herein as a
share of "Common Stock"), to the Stockholders on the date hereof (the
shares issued on such date being referred to herein as the "Original
Shares").
C. The Merger Agreement also provides for the issuance by the Company of
an as yet undetermined number of shares of Common Stock to the
Stockholders on or before each of April 30, 1999, April 30, 2000 and
April 30, 2001 (each such date being referred to herein as an "Earnout
Payment Date" and the shares of Common Stock (if any) being issued to
the Stockholders on any Earnout Payment Date being referred to herein
as "Earnout Shares").
D. The Company and the Stockholders wish to provide for the registration
of the Original Shares and the Earnout Shares on the terms and
conditions set forth herein.
A G R E E M E N T
Based on the recitals set forth above and the promises contained
herein, the parties agree as follows:
1. Definitions. Any capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Merger Agreement. As used
herein, the following terms shall have the following meanings:
"Agreement" has the meaning set forth in the preamble.
"Blocking Notice" has the meaning set forth in Section 12 (Blocking
Periods).
"Blocking Period" has the meaning set forth in Section 12 (Blocking
Periods).
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"Blocking Termination Notice" has the meaning set forth in Section 12
(Blocking Periods).
"Closing Date" means the date hereof.
"Company" has the meaning set forth in the preamble.
"Common Stock" has the meaning set forth in the Recitals.
"Demand Notice" has the meaning set forth in Section 3 (Demand
Registration).
"Demand Penalty Payment" has the meaning set forth in Section 3 (Demand
Registration).
"Demand Registration" means a registration pursuant to Section 3
(Demand Registration).
"Earnout Payment Date" has the meaning set forth in the Recitals.
"Earnout Shares" has the meaning set forth in the preamble.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Information" has the meaning set forth in Section 5 (Stockholder
Information).
"Merger Agreement" has the meaning set forth in the Recitals.
"Original Shares" has the meaning set forth in the Recitals.
"Prospectus" has the meaning set forth in Section 9(b) (Amendments and
Supplements).
"Penalty Payment" has the meaning set forth in Section 2 (Registration
of Original Shares).
"Registration Expenses" means all costs and expenses of each
Registration Statement, including without limitation printing, legal and
accounting expenses, SEC filing fees and "Blue Sky" fees and expenses relating
to the registration of Shares; provided, however, that "Registration Expenses"
also shall mean the reasonable fees and disbursements of a single special
counsel for the Stockholders (selected by the Principal Stockholder) in
connection with (a) a Registration Statement in which the Company has required
that the Stockholders utilize an underwriter or (b) any sale of Shares pursuant
to Rule 144 in connection with which a Stockholder is required to furnish an
opinion of counsel to the effect that the legend on such Shares may be removed.
"Registration Notice" has the meaning set forth in Section 4(b)
(Registration Notice).
"Registration Statement" means any registration statement under the
Securities Act that is filed by the Company to register sales of Shares by the
Stockholder (whether or not such registration statement also registers the
issuance or sale of other securities).
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"Rule 144" means Rule 144 (as currently in effect or as amended or any
successor or similar provision) promulgated by the SEC under the Securities Act.
"Rule 415" means Rule 415 (as currently in effect or as amended or any
successor or similar provision) promulgated by the SEC under the Securities Act.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Selling Expenses" means all underwriters' commissions or discounts,
brokers' fees or commissions, transfer or other taxes attributable to Shares
being offered and sold by the Stockholders, all fees and expenses of counsel
incurred by the Stockholders, other than such fees and expenses as are defined
as "Registration Expenses" above, and all fees and expenses of the Stockholders'
accountants.
"Shares" means (a) the Original Shares and the Earnout Shares and (b)
any securities issued or issuable in respect of the Original Shares or the
Earnout Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, reclassification, merger, consolidation
or similar event, and any other securities issued pursuant to any other pro rata
distribution with respect to such shares of Common Stock. For purposes hereof, a
share of Common Stock ceases to be an Original Share, an Earnout Share or a
Share (each as defined herein) when (i) it has been effectively registered under
the Securities Act and sold or distributed pursuant to an effective Registration
Statement covering it or (ii) all of the Shares owned by the Stockholders have
become eligible, in the opinion of counsel to the Company, to be sold or
distributed immediately pursuant to Rule 144 (within the then-applicable volume
limitation pursuant to Rule 144(e)) or Rule 144(k).
"Stockholder" has the meaning set forth in the preamble.
"Violations" has the meaning set forth in Section 13(a)
(Indemnification by Company).
2. Registration of Original Shares. The Company has filed with the
SEC a Registration Statement on Form S-3 to register the sale by the
Stockholders (in accordance with the intended methods of disposition thereof) of
the Original Shares. The Company shall use commercially reasonable efforts to
cause the Registration Statement to be declared effective under the Securities
Act not later than the 120th day after the Closing Date or as promptly as
practicable thereafter; provided, however, that if such Registration Statement
is not declared effective under the Securities Act on or before the 120th day
after the Closing Date, then the Company shall pay a penalty consisting of a
one-time issuance of shares of Common Stock in an aggregate amount equal to 15%
of the number of shares that constitute the Original Shares, to each Stockholder
pro rata in accordance with his percentage ownership of the Original Shares, on
or before the 125th day after the Closing Date (a "Penalty Payment").
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3. Demand Registration. At any time after the issuance of any
Earnout Shares, the Stockholder may require by a written notice signed by the
Principal Stockholder and delivered to the Company (a "Demand Notice") that the
Company prepare and file as soon as practicable (but in any event within 60 days
of receipt of the Demand Notice) a Registration Statement for the sale by the
Stockholders of Shares. The Company then shall use commercially reasonable
efforts to prepare and file a Registration Statement on a form for which the
Company then qualifies and which shall be available for the sale by the
Stockholders (in accordance with the intended methods of disposition thereof) of
any of the Shares, the registration of which is requested in the Demand Notice.
The Company shall use commercially reasonable efforts to cause such Registration
Statement to be declared effective under the Securities Act not later than the
120th day after the date on which the Company receives the Demand Notice or as
promptly as practicable thereafter; provided, however, that if such Registration
Statement is not declared effective under the Securities Act on or before the
120th day after the date on which the Company receives the Demand Notice, then
the Company shall pay a penalty consisting of a one-time issuance of shares of
Common Stock in an aggregate amount equal to 15% of the number of Earnout Shares
included in the Registration Statement, to each Stockholder pro rata in
accordance with his percentage ownership of the Original Shares on or before the
120th day after the date on which the Company receives the Demand Notice (a
"Demand Penalty Payment"). The Stockholders shall be entitled to one Demand
Registration (requested by the Principal Stockholder) during each twelve-month
period after each Earnout Payment Date on which Shares are issued. On each
Earnout Payment Date on which Shares are issued, any unexercised right to a
Demand Registration during the preceding twelve months shall expire. A Demand
Registration may include any Shares held by the Stockholders on the date the
Demand Notice is delivered.
4. Restrictions on Demand Registration.
(a) Minimum Number of Shares. Notwithstanding anything in
Section 3 (Demand Registration) hereof to the contrary, the Company shall not be
required to effectuate a Demand Registration of fewer than 100,000 Shares.
(b) Registration Notice. Notwithstanding anything in Section 3
(Demand Registration) to the contrary, the Company shall have no obligation
under Section 3 (Demand Registration) with respect to any Demand Registration
if, within 15 days after the date of the Company's receipt of the Demand Notice,
the Company notifies the Principal Stockholder in writing (a "Registration
Notice") that the Company proposes to file, within 30 days after the date of the
Registration Notice, a registration statement on any form for the general
registration of securities for cash under the Securities Act for the account of
the Company (other than in connection with an offering solely to the Company's
employees pursuant to a registration statement on Form S-8 under the Securities
Act or an offering pursuant to a registration statement on Form S-4 under the
Securities Act, or any successor forms thereto), in which event such Demand
Registration shall be postponed until the conclusion or termination of the
transaction described by the Company in the Registration Notice.
(c) Pending Company Registration. Notwithstanding anything in
Section 3 (Demand Registration) to the contrary, the Company shall have no
obligation under Section 3
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(Demand Registration) with respect to any Demand Registration during the period
commencing 15 days prior to the filing of, and ending 180 days following the
effectiveness (or upon the withdrawal) of, any registration statement (other
than in connection with an offering solely to the Company's employees pursuant
to a registration statement on Form S-8 under the Securities Act or an offering
pursuant to a registration statement on Form S-4 under the Securities Act, or
any successor forms thereto) filed by the Company with the SEC with respect to
shares of Common Stock or securities convertible into shares of Common Stock.
(d) Rule 144. Notwithstanding anything in Section 3 (Demand
Registration) to the contrary, the Company shall have no obligation to file or
have declared effective a Registration Statement for any shares of Common Stock
that have ceased to be Shares because they are eligible to be sold immediately
by the Stockholder pursuant to Rule 144 (within the then-applicable volume
limitation pursuant to Rule 144(e)) or Rule 144(k).
5. Stockholder Information. Each Stockholder shall, not later than
the tenth day after the Closing Date or the tenth day after the date on which a
Demand Notice is delivered to the Company (as applicable), furnish the Company
with such information (the "Information") regarding such Stockholder, the Shares
held by such Stockholder, such Stockholder's intended method of distribution of
the Shares and such other information as may be required under the Securities
Act for preparation of the Registration Statement. Such Stockholder thereafter
promptly shall furnish to the Company all Information as may be requested in
writing by the Company from time to time to maintain the effectiveness of any
Registration Statement.
If, within ten business days, such Stockholder has not complied with a
written request from the Company for Information, then the Company's obligation
to register Shares on behalf of the Stockholders shall be suspended until such
Stockholder has complied with such request.
6. Other Securities. The Company may, in its sole discretion,
include in any Registration Statement the issuance of securities by the Company
and the sale or distribution of securities previously issued to, or securities
issuable upon exercise of options or warrants previously issued to, other
persons; provided, however, that if a Demand Registration Statement involves an
underwritten distribution, the Company may not include any other securities
other than the Shares in such Demand Registration Statement if, in the
reasonable opinion of the managing underwriter of such offering, the
distribution of all or a portion of such other securities would materially
interfere with the registration and sale of the Shares.
7. Means of Distribution. If any proposed distribution of Shares by
the Stockholders pursuant to a Registration Statement is proposed to include in
the aggregate 750,000 or more Shares, then the Company may require in the
Company's sole discretion that such Shares to be distributed by the Stockholders
through one or more underwriters selected by the Company with the identity of
such underwriter being subject to the Principal Stockholder's prior written
consent (which shall not be unreasonably withheld). In any proposed distribution
of Shares by a Stockholder pursuant to a Registration Statement, the Company may
require in the Company's sole discretion that such Shares to be distributed by
such Stockholder through (a) routine brokerage transactions or (b)
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directly-negotiated transactions (to one or more purchasers identified by the
Company who will agree to purchase the applicable Shares at a price not less
than the net price such Stockholder would have received if the applicable Shares
were sold on a firm underwriting basis in a public distribution).
8. Underwritten Distributions. In any underwritten distribution of
Shares, the Stockholders shall, if requested by the Company or the underwriter
or underwriters in connection with such distribution, (a) agree to sell all or
the applicable portion of the Stockholders' Shares on the basis provided in any
underwriting arrangements entered into in connection therewith and (b) complete
and execute all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents that are required under the terms of such
underwriting arrangements. The underwriters' commissions or discounts for an
underwritten distribution of Shares shall not exceed 5%. Notwithstanding the
provisions of Section 13 (Indemnification; Contribution) below, no Stockholder
shall have any obligation to indemnify or hold harmless any underwriter, the
Company, the Company's directors or officers or any person who controls (within
the meaning of the Securities Act) the Company (i) unless such indemnification
is based on the reliance upon written information furnished expressly for use in
connection with the applicable Registration Statement and (ii) in an amount
exceeding the proceeds actually received by such Stockholder from his sale of
Shares in connection with such Registration Statement.
9. Registration Procedures. In connection with the registration of
Shares pursuant hereto.
(a) Registration Statement Content. Subject to compliance with
applicable laws and regulations, the Company shall have the sole right to
determine the content of any Registration Statement, Prospectus, supplement
thereto or amendment thereof.
(b) Amendments and Supplements. The Company shall use
commercially reasonable efforts to prepare and file with the SEC such amendments
and supplements to any Registration Statement and the final prospectus (a
"Prospectus") used in connection therewith, as the Company deems necessary to
keep the Registration Statement or Prospectus in effect for a period of one year
from the effective date of such Registration Statement and comply with the
provisions of the Securities Act with respect to the disposition of all Shares
covered by the Registration Statement until the earlier of such time (i) as all
of such Shares have been disposed of in accordance with the intended methods of
disposition by the Stockholders as set forth in the Registration Statement, (ii)
the expiration of such one year period or (iii) the deregistration of unsold
Shares remaining under the Registration Statement, pursuant to a written
agreement among the Company and the Principal Stockholder.
(c) Exchange Listing. The Company shall cause the Shares to be
listed on the Nasdaq National Market or such other securities exchange or
national market system on which shares of the Common Stock are principally
traded at the time of such listing, in accordance with the rules and practices
of the Nasdaq National Market, such other securities exchange or national market
system and the SEC.
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(d) Blue Sky Laws. The Company shall use commercially
reasonable efforts to register or qualify (to the extent required by law) the
Shares covered by any Registration Statement under the applicable securities or
"Blue Sky" laws of such jurisdictions as the Principal Stockholder reasonably
requests; provided, however, that the Company shall not be obligated so to
register or qualify any the Shares in any jurisdiction (i) if the Company would
be required to qualify to do business in any jurisdiction where it is not now so
qualified, (ii) if the Company would be required to take any action which would
subject it to the service of process in suits other than those arising out of
the offer or sale of the securities covered by the Registration Statement or
subject it to taxation in any jurisdiction where it is not now so subject or
(iii) if the Company would be required to conform its capitalization or the
composition of its assets at the time to the securities or "Blue Sky" laws of
such jurisdiction.
(e) Removal of Legend. When any Shares become eligible under
Rule 144(k) (as currently in effect or as amended or any successor or similar
provision) under the Securities Act to be sold by a Stockholder without
restriction, upon the written request either of the Company or such Stockholder,
such Shares will be returned to the Company's transfer agent in exchange for
appropriate new share certificates reflecting the removal of the private
placement legend, unless otherwise required by the Securities Act.
10. Stockholder Undertakings. Each Stockholder covenants with the
Company as follows:
(a) No Stabilization. The Stockholder shall not effect any
stabilization transactions or engage in any stabilization activity proscribed by
Regulation M under the Exchange Act in connection with any securities of the
Company during the period of any distribution of the Shares by the Stockholder
pursuant to any Registration Statement.
(b) Brokers. The Stockholder (i) shall furnish each broker
through whom the Stockholder offers the Shares such number of copies of any
Prospectus and any supplements thereto or amendments thereof which such broker
may require (provided that the Company has provided the Stockholder with such
Prospectus, supplements and amendments), (ii) shall inform such broker as to the
number of Shares offered through such broker, that such Shares are part of a
distribution and that such broker is subject to the provisions of Regulation M
under the Exchange Act until such time as such broker has completed the sale of
all such Shares, and (iii) shall notify such broker when distribution of the
Shares by the Stockholder pursuant to any Registration Statement has been
completed or any Registration Statement is no longer effective or is withdrawn.
(c) Amendments and Supplements. The Stockholder shall promptly
furnish to each person (including each broker) to whom the Stockholder has
delivered copies of the Prospectus an equivalent number of copies of any
amendment thereof or supplement thereto (provided that the Company has provided
the Stockholder with such amendment or supplement).
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(d) Transaction Information. The Stockholder shall report
promptly to the Company upon any disposition of Shares by the Stockholder and
upon completion of the distribution of the Stockholder's Shares pursuant to any
Registration Statement.
(e) Exchange Act Compliance. The Stockholder shall, at any
time such Stockholder is engaged in a distribution of the Shares under any
Registration Statement, comply to the extent required with Rules 10b-5 and
Regulation M (as currently in effect or as amended or any successor or similar
provisions) promulgated under the Exchange Act and shall distribute the Shares
solely in the manner described in any Registration Statement, and shall not do
any of the following during the period from the effective date of any
Registration Statement until the completion of any offering of the Shares by the
Stockholder pursuant to such Registration Statement:
(i) Bid for or purchase, for any account in which the
Stockholder or any affiliate of the Stockholder has a beneficial interest, any
securities of the Company other than in transactions permitted by Regulation M
under the Exchange Act;
(ii) Attempt to induce any person to purchase any
securities of the Company other than in transactions permitted by Regulation M
under the Exchange Act; and
(iii) Pay or offer or agree to pay to anyone, directly or
indirectly, any compensation for soliciting another to purchase any securities
of the Company on a national securities exchange or pay or offer or agree to pay
to anyone any compensation for purchasing securities of the Company on a
national securities exchange other than those securities offered by the
Stockholder.
(f) Publicity; Selling Efforts. The Stockholder shall not,
during the period of any offering by the Stockholder of any Shares under any
Registration Statement, use or disseminate any information concerning the
Company other than the Prospectus (or any amendment thereof or supplement
thereto furnished by the Company) and may not undertake any form of publicity
with respect to the Company or engage in any similar activities that may be
deemed to be an unlawful selling effort within the meaning of Section 10 of the
Exchange Act.
(g) Material Nonpublic Information. The Stockholder shall not
offer to sell, sell or otherwise enter into any transaction in connection with
any Shares if the Stockholder is aware of material nonpublic information
regarding the Company or its subsidiaries.
(h) Brokerage Commissions. Except as disclosed in the
Prospectus, the Stockholder will not pay unusual or special brokerage
commissions (other than ordinary brokerage arrangements) on any sales effected
through a broker, and no selling arrangement will have been entered into between
the Stockholder and any securities dealer or broker.
(i) Method of Disposition. In any distribution of Shares
pursuant to Rule 415, at least five business days prior to any disposition of
the Shares, the Stockholder shall advise the Company of the dates on which such
disposition is expected to commence and terminate, the number of the
Stockholder's Shares expected to be sold, the method of disposition and such
other information
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as the Company may reasonably request in order to supplement the Prospectus in
accordance with the rules and regulations of the SEC.
11. Company Undertakings. The Company covenants with the
Stockholders as follows:
(a) Furnish Information. Before filing a Registration
Statement, a preliminary prospectus or a Prospectus, the Company will furnish
the Principal Stockholder copies of such documents. The Company also will
furnish to the Principal Stockholder such copies of each preliminary prospectus
and Prospectus as the Principal Stockholder may reasonably request. The Company
will furnish to the Principal Stockholder a copy of all documents filed with and
all correspondence from or to the SEC in connection with the offering covered by
any Registration Statement. Notwithstanding any of the obligations of the
Company set forth herein, the Company shall only be required to furnish such
audited annual or unaudited quarterly or monthly financial statements required
to keep the Registration Statement effective under the Securities Act.
(b) Material Developments. The Company will notify the
Stockholders of the happening of any event as a result of which a Prospectus
being used by the Stockholders to sell Shares pursuant to a Registration
Statement contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Following such notice and upon the Company's written request, the
Stockholders shall deliver to the Company all copies (other than permanent file
copies then in the Stockholder's possession) of the Prospectus that was in
effect prior to such written notice. Subject to Section 12 (Blocking Periods),
the Company thereafter will use commercially reasonable efforts to prepare
promptly a supplement or amendment of such Prospectus so that, as thereafter
delivered to the purchaser of the Shares, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(c) Underwriting Agreements. In any underwritten distribution
of Shares, the Company shall, to the extent required by the managing underwriter
of such distribution (i) enter into and perform the Company's obligations under
the applicable underwriting agreement, (ii) furnish to the managing underwriter
an opinion of counsel to the Company (which may be the Company's in-house
counsel) addressing customary legal issues reasonably requested by the managing
underwriter and (iii) furnish to the managing underwriter a customary "comfort
letter" addressed to the managing underwriter from the Company's independent
certified public accountants.
12. Blocking Periods. The Stockholders shall cease any distribution
of the Shares under any Registration Statement upon receipt of a Blocking Notice
(defined below) from the Company. The period of time during which the
Stockholders shall cease distribution of the Shares (the "Blocking Period")
shall be the earlier of 60 days from the receipt of such Blocking Notice by the
Stockholders or the date upon which such transaction, proposed transaction or
negotiations have been publicly disclosed or terminated. The Company promptly
shall send the Principal Stockholder written notice (the "Blocking Termination
Notice") at the earliest of such times as (a) such
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transaction, proposed transaction or negotiations have been publicly disclosed
or terminated, (b) such non-public information has been publicly disclosed, or
(c) counsel to the Company has determined that such disclosure is not required
due to subsequent events. If any Blocking Period occurs after the effective date
of a Registration Statement, then the period during which the Company is
obligated to use commercially reasonable efforts to keep such Registration
Statement effective and from time to time to amend such Registration Statement
shall be extended by a number of days equal to the length in days of the
Blocking Period.
Any sale, offer to sell or other transaction involving Shares by a
Stockholder during a Blocking Period shall constitute a material breach by such
Stockholder of his obligations hereunder. Blocking Notices for the reasons and
for the periods of time set forth in this Section shall not constitute a breach
hereof by the Company.
The Company also may delay the filing of any Registration Statement,
Prospectus, amendment or supplement, or the effectiveness of any Registration
Statement, Prospectus, amendment or supplement, filed pursuant hereto upon
delivery of a Blocking Notice to the Principal Stockholder. The Company's delay
in filing or pursuing the effectiveness of a Registration Statement, Prospectus,
amendment or supplement during a Blocking Period shall not constitute a breach
hereof. At the conclusion of the Blocking Period, the Company shall resume its
efforts in connection with any such Registration Statement, Prospectus,
amendment or supplement and shall send a Blocking Termination Notice to
Stockholders.
"Blocking Notice" shall mean a written notice to the effect that (i) a
distribution of Shares or the filing or effectiveness of a Registration
Statement, Prospectus, amendment or supplement, at such time would require the
public disclosure of material nonpublic information concerning a transaction,
proposed transaction or negotiations involving the Company or any of its
affiliates that, in the Company's reasonable judgment, could interfere with such
transaction, proposed transaction or negotiations or (ii) such distribution of
Shares or the filing or effectiveness of a Registration Statement, Prospectus,
amendment or supplement at such time otherwise would require premature
disclosure of nonpublic information that, in the Company's reasonable judgment,
could adversely affect or otherwise be detrimental to the Company.
13. Indemnification; Contribution.
(a) Indemnification by Company. The Company shall indemnify
and hold harmless, to the extent permitted by law, each Stockholder against all
losses, claims, damages, liabilities and expenses (including without limitation
reasonable attorneys' fees) insofar as such losses, claims, damages, liabilities
and expenses arise out of or are based on (i) any untrue or alleged untrue
statement of a material fact contained in any Registration Statement under which
Shares owned by such Stockholder were registered under the Securities Act, any
Prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or any documents filed under state securities or "Blue Sky" laws in
connection therewith, (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a Prospectus, in the light of the circumstances under
which they were made) not misleading or (iii)
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any violations or alleged violation of the Securities Act, the Exchange Act, any
applicable state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any applicable state securities law in
connection with the offering covered by such Registration Statement (items (I),
(ii) and (iii) are collectively referred to herein as "Violations"); and the
Company shall reimburse each Stockholder for reasonable legal or other expenses
reasonably incurred by him in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 13(a) (Indemnification by Company)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company
be liable in any such case for any loss, claim, damage, liability or action to
the extent that it arises out of or is based on a Violation that occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by the Stockholder. In connection with
an underwritten offering, the Company also will indemnify the underwriter(s)
thereof, their officers and directors and each person who controls (within the
meaning of the Securities Act) such underwriter(s) to the same extent as
provided above with respect to the indemnification of each Stockholder.
(b) Indemnification by Stockholders. In connection with any
Registration Statement in which a Stockholder is participating, such Stockholder
shall, severally and not jointly, indemnify and hold harmless, to the extent
permitted by law, the Company, the Company's directors and officers and each
person, if any, who controls (within the meaning of the Securities Act) the
Company against any losses, claims, damages, liabilities and expenses (including
without limitation reasonable attorneys' fees) insofar as such losses, claims,
damages, liabilities and expenses arise out of or are based on a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by such Stockholder; and
such Stockholder shall reimburse the Company, its officers and directors and
each person, if any, who controls the Company for reasonable legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action. Notwithstanding the
foregoing, no Stockholder shall have any obligation to indemnify or hold
harmless the Company, the Company's directors or officers or any person who
controls (within the meaning of the Securities Act) the Company in an amount
exceeding the proceeds actually received by such Stockholder from his sale of
Shares in connection with such Registration Statement.
(c) Indemnification Procedures. Any person entitled to
indemnification hereunder shall give prompt written notice to the indemnifying
party after the receipt by such person of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which such person will claim indemnification or contribution
pursuant hereto and permit the indemnifying party to participate therein and, to
the extent that it desires, jointly with any other indemnifying party similarly
situated, to assume the defense of such claim with counsel reasonably
satisfactory to such indemnified party. If the indemnifying party elects to
assume the defense of a claim, it shall not be liable to such indemnified party
for legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and except
as otherwise provided below; provided, however, that such indemnified party
shall, at all times, cooperate in the defense of the indemnified party. The
indemnifying party
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shall be liable to the indemnified party for legal or other expenses incurred by
the indemnified party even if the indemnifying party has offered to assume the
defense thereof if (i) the employment of counsel by the indemnified party has
been authorized in writing by the indemnifying party, (ii) the indemnified party
shall have reasonably concluded that there may be a conflict of interest between
the indemnified party and the indemnifying party in conduct of the defense of
such action or (iii) the indemnifying party shall not in fact have employed
counsel to assume the defense of such action. If the indemnifying party is not
entitled to, or elects not to, assume the defense of a claim, then it will not
be obligated to pay the fees and expenses of more than one counsel with respect
to such claim. The indemnifying party will not be subject to any liability for
any settlement made without its consent. If the failure of any person to give
prompt notice to the indemnifying party of any claim with respect to which it
seeks indemnification prejudices such indemnifying party, such indemnifying
party shall be relieved of its obligation to indemnify such person to the extent
that such indemnifying party has been prejudiced; provided, however, that the
indemnifying party shall not be so relieved if the failure to give prompt notice
to the indemnifying party was beyond the control of the indemnified party. No
indemnifying party will consent to entry of any judgment or enter into any
settlement agreement which does not include as an unconditional term thereof the
giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of such claim or litigation.
(d) Contribution. If the indemnification provided for in this
Section from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
(including without limitation reasonable attorneys' fees) 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 (including
without limitation reasonable attorneys' fees) in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, but
also the relative fault of the indemnifying party and the indemnified party 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 or
alleged untrue statements 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 expenses (including without limitation
reasonable attorneys' fees) referred to above shall be deemed to include,
subject to the limitations set forth in Section 13(c) (Indemnification
Procedures), any legal or other fees or expenses reasonably incurred by such
party in connection with any investigation or proceeding.
The parties hereto acknowledge that it would not be just and
equitable if contribution pursuant to this Section 13(d) (Contribution) were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in the
immediately-preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
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14. Expenses. The Company shall bear all Registration Expenses;
provided, however, that the Company shall have no obligation to pay or otherwise
bear the Selling Expenses of a Stockholder.
15. Termination. This Agreement and the obligations of the Company
hereunder shall terminate on the earliest of (a) the first date on which no
shares of Common Stock held by the Stockholders constitute Shares hereunder, (b)
the date on which each party hereto agrees in writing to such termination and
(c) the fourth anniversary of the Closing Date; provided, however, that if this
Agreement terminates pursuant to item (a) of this Section at a time when shares
formerly constituting Shares and held by any Stockholder are eligible for sale
pursuant to Rule 144 but are not eligible to be sold pursuant to Rule 144(k),
then the Company's obligations pursuant to Section 16 (Rule 144 Reporting)
hereof shall remain in effect until all such shares are sold pursuant to Rule
144 or otherwise become eligible to be sold pursuant to Rule 144(k); provided
further, that
solely with respect to item (c) of this Section, such termination date shall be
extended in the event any Demand Registration is postponed pursuant to the
provisions of Section 4 (Restrictions on Demand Registration) for a time period
equal to the period of such delay or postponement.
16. Rule 144 Reporting. With a view to making available to the
Stockholder the benefits of certain rules and regulations of the SEC that may
permit the sale of the Shares to the public without registration, the Company
agrees to use commercially reasonable efforts during the term hereof to (a) make
and keep public information available, as those terms are understood and defined
in Rule 144, (b) file with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act and (c) so long as any
Stockholder owns any Shares, furnish to the Stockholder upon written request a
written statement by the Company as to the Company's compliance with the
reporting requirements of Rule 144, a copy of the most recent annual or
quarterly report of the Company and such other reports, documents and
information as a Stockholder may reasonably request in availing himself of any
rule or regulation of the SEC allowing it to sell any such securities without
registration.
17. Miscellaneous.
(a) Successors and Assigns. The registration rights provided
hereunder are not transferable and shall not inure to the benefit of any persons
other than the Stockholder. Any transfer or assignment in contravention of this
Section shall be null and void.
(b) Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto and referenced herein constitute the full
and entire understanding and agreement between the parties and supersede any
other agreement, written or oral, with regard to the subject matter hereof.
Except as expressly provided herein, neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated, except by a written instrument
signed by the parties hereto.
(c) Notices, Etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
certified or registered mail, postage prepaid with return receipt requested,
telecopy (with hardcopy delivered by overnight courier service), or delivered
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by hand, messenger or overnight courier service, and shall be deemed given when
received at the addresses of the parties set forth below, or at such other
address furnished in writing to the other parties hereto.
If to the Company: AMRESCO, INC.
Suite 2400
000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
(000) 000-0000 (fax)
with a copy to: Xxxxxx and Xxxxx, LLP
Suite 3100
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxxx
(000) 000-0000 (fax)
If to the Stockholders: c/o Xxxxxxx Xxxxxxx
0000 Xxxxxxx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
with copies to: Holland & Knight LLP
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
(000) 000-0000 (fax)
Carlton, Fields, Xxxx, Xxxxxxxx,
Xxxxx & Xxxxxx, P.A.
Xxxxxxx Xxxxx
X.X. Xxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
(000) 000-0000 (fax)
(d) No Third Party Beneficiary, Etc. There shall be no third
party beneficiary hereof. Neither the availability of, nor any limit on, any
remedy hereunder shall limit the remedies of any party hereto against third
parties.
(e) Reformation; Severability. In case any provision hereof
shall be invalid, illegal or unenforceable, such provision shall be reformed to
best effectuate the intent of the parties and permit enforcement thereof, and
the validity, legality and enforceability of the remaining provisions
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shall not in any way be affected or impaired thereby. If such provision is not
capable of reformation, it shall be severed from this agreement and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby
(f) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument. Any counterpart may be delivered
by facsimile; provided, however, that attachment thereof shall constitute the
representation and warranty of the person delivering such signature that such
person has full power and authority to attach such signature and to deliver this
Agreement. Any facsimile signature shall be replaced with an original signature
as promptly as practicable.
(g) Titles and Subtitles. The titles of the paragraphs and
subparagraphs hereof are for convenience of reference only and are not to be
considered in construing this Agreement. References to "Sections" herein are
references to sections of this Agreement. The words "herein," "hereof," "hereto"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision.
(h) Governing Law; Attorneys' Fees. This Agreement shall be
governed by, construed, interpreted and applied in accordance with the laws of
the State of Florida, without giving effect to any conflict of laws rules that
would refer the matter to the laws of another jurisdiction.
Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for the Middle District of
Florida and, if such court does not have jurisdiction, of the courts of the
State of Florida in Pinellas County, for the purposes of any action arising out
of this Agreement, or the subject matter hereof, brought by any other party.
To the extent permitted by applicable law, the Stockholder
hereby waives and agrees not to assert, by way of motion, as a defense or
otherwise in any such action, any claim (i) that it is not subject to the
jurisdiction of the above-named courts, (ii) that the action is brought in an
inconvenient forum, (iii) that it is immune from any legal process with respect
to itself or its property, (iv) that the venue of the suit, action or proceeding
is improper or (v) that this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
The prevailing party in any action or proceeding relating hereto shall
be entitled to recover reasonable attorneys' fees and other costs from the
non-prevailing parties, in addition to any other relief to which such prevailing
party may be entitled.
* * * * *
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This Agreement has been executed and delivered as of the date first
written above.
The Company:
AMRESCO, INC.
By: /s/ L. XXXXX XXXXXXXXX
------------------------------------
Printed Name: L. Xxxxx Xxxxxxxxx
Title: Senior Vice President
The Principal Stockholder:
/s/ XXXXXXX XXXXXXX
---------------------------------------
Xxxxxxx Xxxxxxx
The Other Stockholders:
/s/ XXXX XXXXXXXX
---------------------------------------
Xxxx Xxxxxxxx
/s/ XXXXXXX XXXXXXX
---------------------------------------
Xxxxxxx Xxxxxxx
/s/ XXXXX XXXXXX
---------------------------------------
Xxxxx Xxxxxx
/s/ XXX XXXXXXX
---------------------------------------
Xxx XxXxxxx
/s/ XXX XXXXX
---------------------------------------
Xxx Xxxxx
/s/ XXXXX XXX XXXXX
---------------------------------------
Xxxxx Xxx Xxxxx
/s/ XXXXX XXXX
---------------------------------------
Xxxxx Xxxx
