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EXHIBIT 10.6
FORM OF
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") entered into and effective
as of , 1997 among FirstCity Financial Corporation, a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Harbor
Financial Mortgage Company Employees Pension Plan, Xxxxxxx Capital Corporation,
Xx Xxxxx and Xxxxxx X. Xxxxx (collectively, the "Stockholder Parties").
W I T N E S S E T H:
WHEREAS, the Company, HFGI Acquisition Corp. ("Acquisition Corp.") and
Harbor Financial Group, Inc. ("HFGI") have entered into an Agreement and Plan of
Merger dated as of March 26, 1997 (the "Merger Agreement"), pursuant to which
Acquisition Corp. is being merged with and into HFGI (the "Merger");
WHEREAS, as a result of the consummation of the Merger, the Stockholder
Parties are receiving shares of Common Stock, par value $.01 per share (the
"Common Stock"), of the Company; and
WHEREAS, in connection with and as a condition to the consummation of the
Merger, the parties hereto have entered into this Agreement in order to define
certain rights, duties and obligations of such parties.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions. Except as otherwise set forth below, terms defined in the
Stockholders Agreement (as defined below) are used herein as therein defined.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of Houston, Texas are authorized by law to
close.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means any Person who holds Registrable Securities.
"Indemnified Party" has the meaning set forth in Section 6(c) below.
"Indemnifying Party" has the meaning set forth in Section 6(c) below.
"Material Adverse Effect" has the meaning set forth in Section 2(d) below.
"Registrable Securities" means the Common Stock issued to the Stockholder
Parties pursuant to the Merger Agreement, and any other securities issuable with
respect to such Common Stock by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or reorganization; provided that
(1) any Registrable Security will cease to be a Registrable Security
when (a) a registration statement covering such Registrable Security has
been declared effective by the SEC and it has been disposed of pursuant to
such effective registration statement, (b) it is sold under circumstances
in which all of the applicable conditions of Rule 144 or Rule 145 under the
Securities Act (or any similar provisions then in force) under the
Securities Act are met or (c) (i) it has been otherwise transferred and
(ii) the Company has delivered a new certificate or other evidence of
ownership for it not bearing the legend pertaining to the Securities Act
and (iii) it may be resold without subsequent registration under the
Securities Act;
(2) with respect to any Registrable Securities shall only include such
Registrable Securities which any Requesting Holder could not otherwise sell
pursuant to Rule 144 or Rule 145, without restriction as a result of volume
limitations, whether under subsection (k) of Rule 144 or otherwise.
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"Registration Expenses" has the meaning set forth in Section 5 below.
"Registration Period" has the meaning set forth in Section 2 below.
"Registration Statement" has the meaning set forth in Section 2 below.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" means any Stockholder Party who is selling Registrable
Securities pursuant to the Registration Statement.
"SEC" means the Securities and Exchange Commission.
2. Registration. (a) As soon as practicable after the consummation of the
Merger (the "Closing"), the Company shall file with the SEC a registration
statement (the "Registration Statement") on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which form
shall be available for the sale of the Registrable Securities to be registered
thereunder (including, without limitation, by way of a post-effective amendment
to the Registration Statement on Form S-4, Registration Number 333-24347), to
permit the Stockholder Parties to offer and sell their Registrable Securities on
a delayed or continuous basis under Rule 415 under the Securities Act, and shall
use its reasonable efforts to cause the Registration Statement to become
effective under the Securities Act. After the Registration Statement has been
declared effective, the Company shall use all reasonable efforts to keep the
Registration Statement effective for a period of two years from the Closing (the
"Registration Period").
(b) If at the time the Company or any of its subsidiaries become engaged in
confidential negotiations or other confidential business activities or
developments, disclosure of which may, in the good faith judgment of the Board
of Directors of the Company, materially and adversely affect the Company or the
Company's ability to pursue any such negotiations or business activities, or the
Board of Directors commences consideration of making a registered or
unregistered offering of the Company's securities for the Company's account
(such negotiations, activities, developments or prospective offering referred to
herein as "Pending Matters"), the Company may notify the Stockholder Parties
that they are required to cease using the Registration Statement (and the
prospectus forming a part thereof) in connection with the offer and sale of
Registrable Securities (such notice a "Stoppage Notice"), and the Stockholder
Parties shall immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement. If the Pending Matters are publicly
disclosed or terminated or abandoned, the Company shall promptly so notify the
Stockholder Parties who then may offer and sell Registrable Securities pursuant
to the Registration Statement
3. Restrictions on Public Sale by Holder of Registrable Securities;
Piggyback Registration Rights. (a) Upon the request of the Company, each Holder
of Registrable Securities agrees not to effect any public sale or distribution
of Registrable Securities, including a sale pursuant to Rule 144 or Rule 145,
during the 7 days prior to, and during such period as the Company specifies (not
to exceed 180 days) in such request (as shall be required by the managing
underwriter of the offering contemplated by the registration statement referred
to in this Section 3(a)) beginning on the effective date of a registration
statement with respect to any securities of the Company if and to the extent
requested by the Company.
(b) Subject to the provisions of this Agreement, if the Company proposes to
file a registration statement under the Securities Act with respect to an
offering of its Common Stock by the Company for its own account, then the
Company shall give prompt written notice of such proposed filing to holders of
the Registrable Securities. Upon the written request of any such holder made
within 20 days after the receipt of any such notice, except as set forth below,
the Company shall include in each such registration (a "Piggyback Registration")
all Registrable Securities requested to be included in the registration for such
offering. The Company shall use its reasonable efforts to cause the managing
underwriter of any such proposed underwritten offering to permit the Registrable
Securities requested by the holder thereof to be included in the registration
statement for such offering ("Piggyback Securities") on the same terms and
conditions as the Company's Common Stock included therein. Notwithstanding the
foregoing, the Company shall not be required to include such holder's Piggyback
Securities in such offering if the managing underwriter of such proposed
underwritten offering advises the Company that in its opinion the total amount
of securities, including
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Piggyback Securities, exceeds the number which can be sold in such offering
without causing a material adverse effect on the price or success of such
offering. If the managing underwriter so advises the Company, the Company will
include in such registration, to the extent of the number which the Company is
so advised can be sold in such offering without causing such a material adverse
effect, first the securities being sold by the Company, and next any other
securities pro rata among the Stockholder Parties on the basis of the number of
Registrable Securities requested to be included in such registration by each
such Stockholder Party.
4. Registration Procedures. The Company will:
(a) prepare and promptly file with the SEC such amendments and supplements
to the Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for the
Registration Period (except as provided in the last paragraph of this Section 4)
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the Selling
Holders thereof set forth in the Registration Statement;
(b) furnish to each such Stockholder Party such number of copies of the
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in the Registration
Statement and such other documents as such Selling Holder may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
such Selling Holder;
(c) notify the Selling Holders promptly, and (if requested by any such
person) confirm such notice in writing, (i) when the Registration Statement or
any post-effective amendment has become effective under the Securities Act and
applicable state law, (ii) of any request by the SEC or any other Federal or
state governmental authority for amendments or supplements to the Registration
Statement or related prospectus or for additional information, (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and (v) of the happening of any
event which makes any statement made in the Registration Statement or related
prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in such registration statement, prospectus or documents so that, in the
case of the Registration Statement, it will not contain any 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 not misleading, and that in the case
of the prospectus, it will not contain any 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 light of the circumstances under which they were
made, not misleading;
(d) use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement, or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment;
(e) use its reasonable efforts to cooperate with the Selling Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depositary Trust Company; and enable such Registrable Securities to be
registered in such names as the Selling Holders may request at least two
business days prior to any sale of Registrable Securities;
(f) use its reasonable efforts to register or qualify such Registrable
Securities as promptly as practicable under such other securities or blue sky
laws of such jurisdictions as any Selling Holder reasonably (in light of the
intended plan of distribution) requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such Selling Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such Selling Holder; provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (g), (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction;
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(g) use its reasonable efforts to cause such Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company to
enable the Selling Holder thereof to consummate the disposition of such
Registrable Securities;
(h) make available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period of twelve months, beginning
within three months after the effective date of the Registration Statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act;
(i) use its reasonable efforts to cause all such Registrable Securities to
be listed on each securities exchange on which similar securities issued by the
Company are then listed or quoted on any inter-dealer quotation system on which
similar securities issued by the Company are then quoted; and
(j) if any event contemplated by Section 4(c)(v) above shall occur (subject
to Section 2(b) above), as promptly as practicable prepare a supplement or
amendment or post-effective amendment to the Registration Statement or the
related prospectus or any document incorporated therein by reference or promptly
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, 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 not misleading.
The Company may require each Selling Holder to promptly furnish in writing
to the Company such information regarding the distribution of the Registrable
Securities as it may from time to time reasonably request and such other
information as may be legally required in connection with such registration.
Notwithstanding anything herein to the contrary, the Company shall have the
right to exclude from the Registration Statement the Registrable Securities of
any Selling Holder who does not comply with the provisions of the immediately
preceding sentence.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 4(c)(v)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement until such Selling
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4(c)(v) hereof, and, if so directed by the Company, such
Selling Holder will deliver to the Company all copies, other than permanent file
copies, then in such Selling Holder's possession, of the most recent prospectus
covering such Registrable Securities at the time of receipt of such notice.
5. Registration Expenses. In connection with the Registration Statement the
Company shall pay the following registration expenses (the "Registration
Expenses"): (i) all registration and filing fees (including, without limitation,
with respect to filings to be made with the National Association of Securities
Dealers, Inc.), (ii) fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the Registrable Securities), (iii) word processing,
duplicating and printing expenses, (iv) internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (v) transfer agents', trustees', depositories',
registrars' and fiscal agents' fees, (vi) the fees and expenses incurred in
connection with the listing on an exchange or quoted on an inter-dealer
quotation system of the Registrable Securities, (vii) reasonable fees and
disbursements of counsel for the Company and customary fees and expenses for
independent certified public accountants retained by the Company and (viii) the
reasonable fees and expenses of any special experts retained by the Company in
connection with such registration. The Company shall not be responsible for
underwriting fees, discounts and commissions and transfer taxes, if any, in
respect of the Registrable Securities or the fees and expenses of counsel or
other professionals retained by any of the Stockholder Parties in connection
with the preparation of the Registration Statement or the disposition of
Registrable Securities thereunder.
6. Indemnification; Contribution. (a) Indemnification by the Company. The
Company agrees to indemnify and hold harmless each Selling Holder, each Person,
if any, who controls such Selling Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the officers, directors,
agents, general and limited partners, and employees of each Selling Holder and
each such controlling person
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from and against any and all losses, claims, damages, liabilities, and
reasonable expenses (including reasonable costs of investigation) directly or
indirectly arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
prospectus relating to the Registrable Securities or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or reasonable
expenses arise out of, or are based upon, any such untrue statement or omission
or allegation thereof based upon information furnished to the Company by such
Selling Holder or on such Selling Holder's behalf expressly for use therein; and
the Company will reimburse such Indemnified Party for any legal or other
expenses reasonably incurred by them in connection with enforcing its rights
hereunder, provided, however, that with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus, the indemnity agreement contained in this paragraph shall not apply
to the extent that any such loss, claim, damage, liability or expense results
from the fact that a current copy of the prospectus was not sent or given to the
persons asserting any such loss, claim, damage, liability or expense at or prior
to the written confirmation of the sale of the Registrable Securities concerned
to such person if it is determined that (i)(A) it was the responsibility of such
Selling Holder to provide such person with a current copy of the prospectus, (B)
such Selling Holder was provided with a current copy of the prospectus prior to
the written confirmation of sale and (C) such current copy of the prospectus
would have cured the defect giving rise to such loss, claim, damage, liability
or expense or (ii) the Selling Holder provided a prospectus to any person in
violation of Section 4 hereof.
(b) Indemnification by Holder of Registrable Securities. Each Selling
Holder agrees to indemnify and hold harmless the Company, and each Person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and the officers, directors,
agents and employees of the Company and each such controlling Person to the same
extent as the foregoing indemnity from the Company to such Selling Holder, but
only with respect to written information furnished by such Selling Holder or on
such Selling Holder's behalf expressly for use in the Registration Statement or
prospectus relating to the Registrable Securities. The liability of any Selling
Holder under this Section 8(b) shall be limited to the net amount of proceeds
received by such Selling Holder pursuant to the sale of Registrable Securities
covered by the Registration Statement or prospectus.
(c) Conduct of Indemnification Proceedings. If any action or proceeding
(including any governmental investigation) shall be brought or asserted against
any Person entitled to indemnification under Section 8(a) or 8(b) above (an
"Indemnified Party") in respect of which indemnity may be sought from any party
who has agreed to provide such indemnification under Section 8(a) or 8(b) above
(an "Indemnifying Party"), the Indemnified Party shall give prompt notice to the
Indemnifying Party, provided that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 8, except to the extent that such Indemnifying
Party is materially prejudiced by such failure to give notice. The Indemnifying
Party shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Party, and shall assume the payment
of all reasonable expenses of such defense. Such Indemnified Party shall have
the right to employ separate counsel in any such action or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the Indemnifying
Party has agreed to pay such fees and expenses or (ii) the Indemnifying Party
fails promptly to assume the defense of such action or proceeding or fails to
employ counsel reasonably satisfactory to such Indemnified Party or (iii) the
named parties to any such action or proceeding (including any impleaded parties)
include both such Indemnified Party and Indemnifying Party (or an Affiliate of
the Indemnifying Party), and such Indemnified Party shall have been advised by
counsel that there is a conflict of interest on the part of counsel employed by
the Indemnifying Party to represent such Indemnified Party (in which case, if
such Indemnified Party notifies the Indemnifying Party in writing that it 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 action
or proceeding on behalf of such Indemnified Party). Notwithstanding the
foregoing, the Indemnifying Party shall not, in connection with any one such
action or proceeding or separate but substantially similar related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable at
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any time for the fees and expenses of more than one separate firm of attorneys
(together in each case with appropriate local counsel). The Indemnifying Party
shall not be liable for any settlement of any such action or proceeding effected
without its written consent (which consent will not be unreasonably withheld),
but if settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Party from and against any loss or
liability (to the extent stated above) by reason of such settlement or judgment.
The Indemnifying Party shall not consent to entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release, in form and
substance satisfactory to the Indemnified Party, from all liability in respect
of such action or proceeding for which such Indemnified Party would be entitled
to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this Section 8 is
unavailable to the Indemnified Parties in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each such
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 and judgments as between the
Company on the one hand and each Selling Holder on the other, in such proportion
as is appropriate to reflect the relative fault of the Company and of each
Selling Holder in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of each Selling Holder on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Selling Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such Selling Holder were offered to
the public exceeds the amount of any damages which such Selling Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
7. Miscellaneous. (a) Rule 144 etc. The Company will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder, and will take such
further action as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities Act,
as such rule may be amended from time to time, or (ii) any successor rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
(b) Amendment. Any provision of this Agreement may be altered,
supplemented, amended, or waived only by the written consent of each of the
parties hereto.
(c) Specific Performance. The parties hereto recognize that the obligations
imposed on them in this Agreement are special, unique, and of extraordinary
character, and that in the event of breach by any party, damages will be an
insufficient remedy; consequently, it is agreed that the parties may have
specific performance and injunctive relief (in addition to damages) as a remedy
for the enforcement hereof, without proving damages.
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(d) Assignment. Except as otherwise expressly provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties hereto. In addition,
and provided that an express assignment shall have been made, a copy of which
shall have been delivered to the Company, the provisions of this Agreement which
are for the benefit of a holder of Registrable Securities shall be for the
benefit of and enforceable by any subsequent holder of any Registrable
Securities. Any purported assignment made in violation of this Section 10(d)
shall be void and of no force and effect.
(e) Notices. Any and all notices, designations, consents, offers,
acceptances, or other communications provided for herein (each a "Notice") shall
be given in writing by overnight courier, telegram, or telecopy (with receipt
confirmed) which shall be addressed, or sent, to the respective addresses as
follows (or such other address as any party may specify to the Company and all
other parties by Notice):
The Company:
FirstCity Financial Corporation
0000 Xxxxxxxx Xxxxx
Xxxx, Xxxxx 00000
Attn:
Telecopy Number: (000) 000-0000
Copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy Number: (000) 000-0000
If to the Stockholder Parties, to:
Xxxxxxx X. Xxxxxx
Harbor Financial Group, Inc.
000 Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
with a copy to:
Xxxxxxxxx & Xxxxxxxxx, L.L.P.
South Tower Pennzoil Place
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxxxxx
All Notices shall be deemed effective and received (a) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
above and receipt thereof is confirmed; (b) if given by overnight courier, on
the business day immediately following the day on which such Notice is delivered
to a reputable overnight courier service; or (c) if given by telegram, when such
Notice is delivered at the address specified above. No party shall be entitled
to receive a Notice hereunder (or a copy of a Notice delivered to the Company)
if, at the time such Notice is to be sent, such party (including its Affiliates
and the employees of such party and its Affiliates) no longer owns any
Registrable Securities.
(f) Counterparts. This Agreement may be executed in two or more
counterparts and each counterpart shall be deemed to be an original and which
counterparts together shall constitute one and the same agreement of the parties
hereto.
(g) Section Headings. Headings contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit, or extend the scope
or intent of this Agreement or any provisions hereof.
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(h) No Punitive Damages; Waiver of Jury Trial; Prevailing Party's Fees and
Expenses. The parties hereto agree to waive any and all rights to request or
receive punitive damages in connection with any action or proceeding related to
the subject matter of this Agreement. The parties hereto waive all right to
trial by jury in any action or proceeding to enforce or defend any rights under
this Registration Rights Agreement. The substantially prevailing party in any
action or proceeding relating to this Agreement shall be entitled to receive an
award of, and to recover from any non-prevailing party, any fees or expenses
incurred by him or it (including, without limitation, fees and disbursements of
such prevailing party's counsel) in connection with any such action or
proceeding.
(i) Choice of Law. This Agreement will be governed by and construed and
enforced in accordance with the laws of the State of Texas (without regard to
the principles of conflicts of law) applicable to a contract executed and to be
performed in such state. Each of the parties hereto (a) agrees to submit to
personal jurisdiction and to waive any objection as to venue in the State or
federal courts located in McLennan County, Texas, (b) agrees that any action or
proceeding shall be brought exclusively in such courts, unless subject matter
jurisdiction or personal jurisdiction cannot be obtained, and (c) agrees that
service of process on any party in any such action shall be effective if made by
registered or certified mail addressed to such party at the address specified
herein, or to any party hereto at such other addresses as it or he may from time
to time specify to the other parties in writing for such purpose. The exclusive
choice of forum set forth in this Section 7(i) shall not be deemed to preclude
the enforcement of any judgment obtained in such forum or the taking of any
action under this Agreement to enforce such judgment in any appropriate
jurisdiction.
(j) Entire Agreement. This Agreement contains the entire understanding of
the parties hereto respecting the subject matter hereof and supersedes all prior
agreements, discussions and understandings with respect thereto.
(k) Severability. If any term, provision, covenant, or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired, or invalidated.
(l) Termination. This Agreement shall terminate on the second anniversary
of the Closing.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Registration Rights Agreement as of the date first above written.
FirstCity Financial Corporation
By:
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Name:
Title:
STOCKHOLDERS
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XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX
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XX XXXXX
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XXXXXX X. XXXXX
HARBOR FINANCIAL MORTGAGE COMPANY
EMPLOYEES PENSION PLAN
By:
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XXXXXXX CAPITAL CORPORATION
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By:
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