REGISTRATION RIGHTS AGREEMENT
(Southwestern Financial Corporation)
This Registration Rights Agreement (the "Agreement") is made
and entered into as of December 14, 1995, by and among Southwestern
Financial Corporation, a Delaware corporation (the "Company"), and I.C.H.
Corporation ("ICH"), a Delaware corporation, SWL Holding Corporation ("SWL
Holding"), a Delaware corporation, and Care Financial Corporation ("CFC"),
a Delaware corporation (CFC, SWL Holding and ICH, together with Facilities
Management Installation, Inc., a Delaware corporation ("FMI"), referred to
herein collectively as the "Debtors").
This Agreement is made pursuant to the Purchase Agreement (the
"Purchase Agreement"), dated as of December 1, 1995, by and among the
Debtors, the Company, Southwestern Financial Services Corporation, a
Delaware corporation, and PennCorp Financial Group, Inc., a Delaware
corporation. In order to induce the Debtors to perform their obligations
under the Purchase Agreement and to consummate the transactions
contemplated thereby, the Company has agreed to provide the registration
and other rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the consummation of the Purchase
Agreement.
The parties agree as follows:
1. Securities Subject to this Agreement
(a) Certain Definitions. The terms set forth below are used
herein as so defined:
"Bankruptcy Court" means the United States Bankruptcy Court for
the Northern District of Texas, Dallas Division.
"Class A Common Stock" means the Class A Common Stock, par
value $.01 per share, of the Company, and any class or series of capital
stock into which such Class A Common Stock thereafter may be changed.
"Class B Common Stock" means the Class B Non-Voting Common
Stock, par value $.01 per share, of the Company, and any class or series of
capital stock into which such Class B Common Stock thereafter may be
changed.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means, collectively, the Class A Common Stock
and the Class B Common Stock.
"Convertible Notes" means the Company's Convertible
Subordinated Reset Notes due 2005.
"Date of Distribution" means the first date on which
Convertible Notes or shares of Common Stock are delivered to Distributees
pursuant to the Plan of Reorganization.
"Demand Registration" has the meaning given such term in
Section 2(a).
"Demand Request" has the meaning given such term in Section
2(a).
"Distributees" means the holders of claims against and/or
interests in one or more of the Debtor's estates who receive, in accordance
with the Plan of Reorganization, Convertible Notes or, if the Convertible
Notes have been converted, Common Stock in exchange for such claims or
interests.
"Eligible Distributees" means Distributees who, within 180 days
after the later to occur of (i) December 15, 1996, (ii) the Date of
Distribution and (iii) the date on which the Convertible Notes first become
convertible into Common Stock, deliver to the Company written notice of
election to exercise registration rights hereunder; provided, however, that
the only Distributees entitled to such registration rights shall be
Distributees who are (i) holders of at least $10 million principal amount
of Convertible Notes which, at the date of notice of exercise or within 60
days of the date of notice of exercise, are convertible into Common Stock,
(ii) holders of 5% or more of the outstanding Common Stock who acquired
such Common Stock pursuant to, or upon conversion of Convertible Notes
acquired pursuant to, the Plan of Reorganization or (iii) holders who
otherwise provide to the Company a written opinion of counsel (in form and
substance reasonably satisfactory to the Company,
which may set forth the analysis relied upon in reaching the relevant legal
conclusion) to the effect that the offer and sale by such holder of the
Convertible Notes or Common Stock, as applicable, in the manner proposed to
be offered and sold by such holder, is required to be made pursuant to a
registration statement under the Securities Act; provided, however, that
the 180-day period referred to above shall be extended by the period, if
any, which any Demand Registration is deferred pursuant to Section 2(e) or
4(f) of this Agreement. Notwithstanding anything herein to the contrary,
no Person shall be an Eligible Distributee unless such Person agrees in
writing to be bound by the terms and provisions of this Agreement to the
same extent as the Debtors.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect from time to
time.
"Holder" has the meaning set forth in the definition of
Registrable Securities.
"Person" means any individual, partnership, joint venture,
corporation, trust, unincorporated organization, or other entity.
"Plan of Reorganization" means a plan of reorganization with
respect to the Debtors' jointly administered cases under Chapter 11 of the
Bankruptcy Code that has been confirmed by the Bankruptcy Court, has not
been stayed pending appeal and becomes effective in accordance with its
terms or an order of the Bankruptcy Court.
"Pro Rata Basis" means a pro rata allocation, among a specified
group of Persons, based on the number of shares of Common Stock requested
to be included in a registered offering by such group of Persons.
"Registrable Securities" means (i) for so long as the
Convertible Notes are not convertible into Common Stock, the Convertible
Notes and (ii) the Common Stock issued or issuable upon the conversion of
the Convertible Notes to the extent such Convertible Notes were acquired by
CFC pursuant to the Purchase Agreement, or to the extent such Convertible
Notes or Common Stock were acquired by any other Debtor from CFC or by
Eligible Distributees pursuant to the Plan of Reorganization (each, a
"Holder"), until such time as such securities shall cease to be
Registerable Securities as provided in Section 1(b) hereof.
"Registration Expenses" has the meaning set forth in Section 8.
"Registration Statement" has the meaning set forth in Section
7(a).
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to
time.
"Selling Holder" means a Holder who is selling Registrable
Securities pursuant to a registration statement under this Agreement.
(b) Registrable Securities. Any Registrable Security will
cease to be a Registrable Security when (i) a registration statement
covering such Registrable Security has been declared effective by the
Commission and such security has been disposed of pursuant to such
effective registration statement, or (ii) such security is distributed
pursuant to the Plan of Reorganization to a Person other than an Eligible
Distributee, or (iii) such security is sold pursuant to a registered public
offering or pursuant to Section 4(1) of the Securities Act or Rule 144,
Rule 144A or Regulation S under the Securities Act (or any similar
provision then in force), or (iv) such security is eligible for sale
pursuant to Rule 144(k) under the Securities Act.
2. Demand Registration by Debtors
(a) Request for Registration. (i) Commencing on and after December
15, 1996, the Debtors that are Holders may request (collectively, the
"Requesting Debtors"), in writing (a "Demand Request"), that the Company
effect one registration under the Securities Act of all but not less than
all of the Convertible Notes or, if the Convertible Notes are convertible,
the Common Stock held by all the Debtors that are Holders (a "Demand
Registration").
(ii) Subject to Section 2(e), the Company shall file the
Demand Registration, as expeditiously as possible, and in any event within
60 days, after receiving the Demand Request (the "Required Filing Date")
and shall use its commercially reasonable efforts to cause the same to be
declared effective by the Commission as soon as possible after such filing;
provided that, if any Registrable Securities requested to be registered
pursuant to a Demand Request under this Section 2 are excluded from the
registration pursuant to Section 2(d) below, the Debtors shall
have the right, with respect to each such exclusion, to one additional
Demand Registration under this Section 2 with respect to such excluded
Registrable Securities.
(b) Effective Registration and Expenses. A registration will not
count as a Demand Registration until it has become effective (unless the
Requesting Debtors withdraw all their Registrable Securities and the
Company has performed its obligations hereunder in all material respects,
in which case such demand will count as a Demand Registration unless the
Requesting Debtors pay all Registration Expenses in connection with such
withdrawn registration); provided that, if, after it has become effective,
an offering of Registrable Securities pursuant to a registration is
interfered with by any stop order, injunction, or other order or
requirement of the Commission or other governmental agency or court, such
registration will be deemed not to have been effected and will not count as
a Demand Registration. Except as set forth above, the Company will pay all
Registration Expenses in connection with any Demand Registration, whether
or not it becomes effective.
(c) Selection of Underwriters. The offering of Registrable
Securities pursuant to a Demand Registration shall be in the form of a
"firm commitment" underwritten offering. The Company shall select a
nationally recognized investment banking firm or firms to manage the
underwritten offering.
(d) Priority on Demand Registrations. No securities to be sold for
the account of any Person (including the Company) other than a Requesting
Debtor shall be included in a Demand Registration unless the managing
underwriter or underwriters shall advise the Company in writing that the
inclusion of such securities would not materially and adversely affect the
price or success of the offering (a "Material Adverse Effect").
Furthermore, in the event that the managing underwriter or underwriters
shall advise the Company that even after exclusion of all securities of the
other Persons pursuant to the immediately preceding sentence, the amount of
Registrable Securities proposed to be included in such Demand Registration
by the Requesting Debtors is sufficiently large to cause a Material Adverse
Effect, the Registrable Securities of the Requesting Debtors to be included
in such Demand Registration shall be reduced to that amount of Registrable
Securities which the Company is so advised can be sold in such offering
without a Material Adverse Effect and such shares shall be allocated among
the Requesting Debtors as they shall advise the Company in writing.
(e) Deferral of Filing. The Company may defer the filing (but not
the preparation) of a registration statement required by Section 2 until a
date not later than 180 days after December 15, 1996 (with respect to
clause (i) below) or 180 days after the commencement of a Material Activity
(as defined in clause (ii) below), if (i) at December 15, 1996, the Company
is preparing to file or within 60 days after December 15, 1996, the Company
commences to prepare a registration statement for a public offering, which
in fact is filed and becomes effective within 180 days of December 15,
1996, or (ii) at the time of any Demand Request the Company is engaged in
any activity (a "Material Activity") that, in the good faith judgment of
the Company's board of directors, would be materially and adversely
affected to the detriment of the Company by the requested registration
(provided that no more than one deferral with respect to the same Material
Activity may be effected pursuant to this clause (ii) during any 360-day
period). A deferral of the filing of a registration statement pursuant to
this Section 2(e) shall be lifted, and, unless the Demand Request has been
withdrawn as contemplated below the requested registration statement shall
be filed forthwith, if, in the case of a deferral pursuant to clause (i)
of the preceding sentence, the proposed registration for the Company's
account is abandoned, or in the case of a deferral pursuant to clause (ii)
of the preceding sentence, the Company ceases to be engaged in a Material
Activity. In order to defer the filing of a registration statement
pursuant to this Section 2(e), the Company shall promptly (but in any event
within 10 days), upon determining to effect such deferral, deliver to each
Debtor a certificate signed by an executive officer of the Company stating
that the Company is deferring such filing pursuant to this Section 2(e) and
an approximation of the anticipated delay. Within 20 days after receiving
such certificate, the holders of a majority of the Registrable Securities
beneficially owned by the Debtors and for which registration was previously
requested may withdraw such Demand Request by giving notice to the Company;
if withdrawn, the Demand Request shall be deemed not to have been made for
all purposes of this Agreement. If any deferral is lifted as provided
above, prompt notice thereof shall be given in writing to the Requesting
Debtors who thereafter shall be entitled to deliver a new Demand Request.
This Section 2(e) shall not prohibit the Debtors from exercising any
"piggyback" registration rights to which they would otherwise be entitled
pursuant to Section 3.
3. Piggyback Registrations by Debtors.
(a) Request for Registration. At any time after the date hereof,
if the Company proposes to file a registration statement under the
Securities Act (other than a registration statement on Form S-4 or S-8 (or
any successor form that may be
adopted by the Commission) or a registration statement filed in connection
with an exchange offer or offering of securities solely to the Company's
existing securityholders) with respect to an underwritten offering for cash
of Common Stock for the Company's own account or for the account of any of
its securityholders (other than in connection with the initial underwritten
public offering of Common Stock of the Company), then the Company shall
give written notice to each Debtor that is a Holder not less than 20 days
before the anticipated effective date of such registration statement. Such
notice shall offer each such Debtor the opportunity to have all or any of
the Registrable Securities held by it included in such registration
statement (the "Piggy-back Registration"). Within ten days after receiving
such notice, each such Debtor may make a written request to the Company
that any or all of its Registrable Securities be included in the Piggy-back
Registration, which notice shall specify the amount of Registrable
Securities to be so included. Subject to Section 3(b) hereof, the Company
shall include in the Piggy-back Registration all Registrable Securities
with respect to which the Company has received written requests for
inclusion therein within ten days after the receipt by each such Debtor of
the Company's notice. The Company may in its discretion withdraw any
registration statement filed pursuant to this Section 3(a). Any Holder, as
applicable, shall be permitted to withdraw all or part of the Registrable
Securities from a Piggy-back Registration at any time prior to the
effective date of such Piggy-back Registration.
(b) Priority on Piggy-back Registration. The Company shall use its
reasonable best efforts to cause the managing underwriter or underwriters
to permit the shares of Registrable Securities requested by the holders of
Registrable Securities ("Selling Piggy-back Holders") to be included in the
Piggy-back Registration (on the same terms and conditions, as nearly as
practicable, as the securities included therein for the account of the
Company or any other securityholders). Notwithstanding the foregoing, if
the managing underwriter or underwriters of such offering advise the
Company in writing that inclusion of the Registrable Securities requested
to be included in the offering would cause a Material Adverse Effect, then
(i) if such Piggy-back Registration is incident to a primary registration
on behalf of the Company, the Company shall include in the registration
statement (A) first, all the securities to be sold by it and (B) second,
the maximum amount of securities requested to be included in the Piggy-back
Registration by the Selling Piggy-back Holders and all other
securityholders of the Company entitled to piggy-back registration rights
the inclusion of which would not cause a Material Adverse Effect (provided
that the amount to be included by the Selling Piggy-back Holders shall be
allocated, subject to any written agreement among the Selling Piggy-back
Holders, on
a Pro Rata Basis among such Selling Piggy-back Holders and other
securityholders if the inclusion of all the requested Registrable
Securities would cause a Material Adverse Effect) and (ii) if such Piggy-
back Registration is incident to a secondary registration on behalf of
holders of Common Stock (other than Holders) pursuant to demand
registration rights, the Company shall include in such registration
statement (A) first, the number of shares of Common Stock of the Person(s)
on whose behalf the registration is being made (allocated among such
Persons as they may determine, if applicable) and (B) second, the number of
Registrable Securities requested to be included in such registration
pursuant to this Section 3 in excess of the securities of such Person(s) on
whose behalf the registration is being made that, in the opinion of the
managing underwriters, would not have a Material Adverse Effect, subject to
any written agreement among the Selling Piggy-back Holders, on a Pro Rata
Basis among such Selling Piggy-back Holders, any other securityholder
entitled to exercise piggy-back registration rights with respect to such
registration statement and the Company, to the extent it desires to include
securities in such registration.
4. Demand Registration of Eligible Distributees
(a) Request for Registration. (i) Commencing on and after December
15, 1996, any Eligible Distributee (the "Requesting Eligible Distributee,"
which term shall include parties deemed "Requesting Eligible Distributees"
pursuant to Section 4(e) hereof) may request the Company, in writing (a
"Demand Request"), to effect one registration under the Securities Act of
all but not less than all of the Convertible Notes or, if the Convertible
Notes are convertible into Common Stock, the Common Stock held by the
Requesting Eligible Distributees (a "Demand Registration").
Notwithstanding anything herein to the contrary, if at the time of any
Demand Request, the Company is not eligible to use Form S-3 (or any
substitute or successor form thereto), demand registration rights pursuant
to this Section 4(a) may be exercised only by Eligible Distributees who
collectively own beneficially, and then only with respect to, at least $10
million principal amount of Convertible Notes or at least 5% of the
outstanding Common Stock; provided, however, that all Eligible Distributees
shall be provided notice of, and the opportunity to participate in, such
Demand Registration in accordance with Section 4(e).
(ii) Subject to Section 4(f), the Company shall file the
Demand Registration as expeditiously as possible and in any event within 60
days after receiving a Demand Request (the "Required Filing Date") and
shall use its commercially reasonable efforts to cause the same to be
declared effective by the
Commission as soon as possible after such filing; provided that, if any
Registrable Securities requested to be registered pursuant to a Demand
Request under this Section 4 are excluded from a registration pursuant to
Section 4(d) below, the Eligible Distributees shall have the right, with
respect to each exclusion, to one Demand Registration under this Section 4
with respect to such excluded securities.
(b) Effective Registration and Expenses. A registration will not
count as a Demand Registration until it has become effective (unless the
Requesting Eligible Distributees withdraw all their Registrable Securities
and the Company has performed its obligations hereunder in all material
respects, in which case such demand will count as a Demand Registration
unless the Requesting Eligible Distributees pay all Registration Expenses
in connection with such withdrawn registration); provided that, if, after
it has become effective, an offering of Registrable Securities pursuant to
a registration is interfered with by any stop order, injunction, or other
order or requirement of the Commission or other governmental agency or
court, such registration will be deemed not to have been effected and will
not count as a Demand Registration. Except as set forth above, the Company
will pay all Registration Expenses in connection with any Demand
Registration, whether or not it becomes effective.
(c) Selection of Underwriters. The offering of Registrable
Securities pursuant to a Demand Registration shall be in the form of a
"firm commitment" underwritten offering. The Company shall select a
nationally recognized investment banking firm or firms to manage the
underwritten offering.
(d) Priority on Demand Registrations. No securities to be sold for
the account of any Person (including the Company) other than a Requesting
Eligible Distributee shall be included in a Demand Registration unless the
managing underwriter or underwriters shall advise the Company in writing
that the inclusion of such securities would not have a Material Adverse
Effect. Furthermore, in the event that the managing underwriter or
underwriters shall advise the Company that even after exclusion of all
securities of the other Persons pursuant to the immediately preceding
sentence, the amount of Registrable Securities proposed to be included in
such Demand Registration by Requesting Eligible Distributees is
sufficiently large to cause a Material Adverse Effect, the Registrable
Securities of the Requesting Eligible Distributees to be included in such
Demand Registration shall be reduced to that amount of Registrable
Securities which the Company is so advised can be sold in such offering
without a Material Adverse Effect and such Registrable Securities shall be
allocated on a Pro Rata Basis among the Requesting Eligible Distributees on
the basis of the number of Registrable Securities requested to be included
by each such Requesting Eligible Distributees.
(e) Rights of Nonrequesting Eligible Distributees. Upon receipt of
any Demand Request, the Company shall promptly, but in any event within 10
days of such Demand Request, give notice of such proposed Demand
Registration to all other Eligible Distributees, who shall have the right,
exercisable by written notice to the Company within 20 days of their
receipt of the Company's notice, to elect to include in such Demand
Registration all of their Registrable Securities. All Eligible
Distributees requesting to have their Registrable Securities included in a
Demand Registration Statement in accordance with the preceding sentence
shall be deemed to be "Requesting Eligible Distributees" for purposes of
this Section 4. The failure of any Eligible Distributee to elect to
include all of its or his Registrable Securities pursuant to this Section
4(e) shall terminate any further rights of such Eligible Distributee
pursuant to this Section 4. Notwithstanding anything in Section 4(a)(i) to
the contrary, if the Company is not otherwise required to effect a Demand
Registration because of the last sentence of Section 4(a)(i), but a number
of Eligible Distributees accept the Company's notice described in this
clause (e) sufficient to satisfy the requirements of the last sentence of
Section 4(a)(ii), the Demand Request shall be deemed to have been received,
for purposes of Section 4(b), on the twentieth day after the date of the
Company's notice pursuant to this clause (e).
(f) Deferral of Filing. The Company may defer the filing (but not
the preparation) of a registration statement required by Section 4 until a
date not later than 180 days after December 15, 1996 (with respect to
clause (i) below) or 180 days after the commencement of a Material Activity
(as defined in clause (ii) below), if (i) at December 15, 1996, the Company
is preparing to file or within 60 days after December 15, 1996, the Company
commences to prepare a registration statement for a public offering, which
in fact is filed and becomes effective within 180 days of December 15,
1996, or (ii) at the time of any Demand Request the Company is engaged in
any Material Activity (provided that no more than one deferral with respect
to the same Material Activity may be effected pursuant to this clause (ii)
during any 360-day period). A deferral of the filing of a registration
statement pursuant to this Section 4(f) shall be lifted, and, unless the
Demand Request has been withdrawn as contemplated below, the requested
registration statement shall be filed forthwith, if, in the case of a
deferral pursuant to clause (i) of the preceding sentence, the proposed
registration for the Company's account is abandoned, or in the
case of a deferral pursuant to clause (ii) of the preceding sentence, the
Company ceases to be engaged in a Material Activity. In order to defer the
filing of a registration statement pursuant to this Section 4(f), the
Company shall promptly (but in any event within 10 days), upon determining
to seek such deferral, deliver to each Eligible Distributee a certificate
signed by an executive officer of the Company stating that the Company is
deferring such filing pursuant to this Section 4(f) and an approximation of
the anticipated delay. Within 20 days after receiving such certificate,
the holders of a majority of the Registrable Securities held by the
Eligible Distributees and for which registration was previously requested
may withdraw such Demand Request by giving notice to the Company; if
withdrawn, the Demand Request shall be deemed not to have been made for all
purposes of this Agreement. If any deferral is lifted as provided above,
prompt notice thereof shall be given in writing to the Eligible
Distributees who thereafter shall be entitled to deliver a new Demand
Request. This Section 4(f) shall not prohibit the Eligible Distributees
from exercising any "piggyback" registration rights to which they would
otherwise be entitled pursuant to Section 5.
5. Piggyback Registrations of Eligible Distributees.
(a) Request for Registration. At any time after the date hereof,
if the Company proposes to file a registration statement under the
Securities Act (other than a registration statement on Form S-4 or S-8 (or
any successor form that may be adopted by the Commission) or a registration
statement filed in connection with an exchange offer or offering of
securities solely to the Company's existing securityholders) with respect
to an underwritten offering for cash of Common Stock for the Company's own
account or for the account of any of its securityholders (other than in
connection with the initial underwritten public offering of Common Stock of
the Company), then the Company shall give written notice to each Eligible
Distributee not less than 20 days before the anticipated effective date of
such registration statement. Such notice shall offer each Eligible
Distributee the opportunity to have all or any of the Registrable
Securities held by it included in such registration statement (the
"Distributee Piggy-back Registration"). Within ten days after receiving
such notice, each Eligible Distributee may make a written request to the
Company that any or all of its Registrable Securities be included in the
Piggy-back Registration, which notice shall specify the number of shares of
Common Stock to be so included. Subject to Section 5(b) hereof, the
Company shall include in the Distributee Piggy-back Registration all
Registrable Securities with respect to which the Company has received
written requests for inclusion therein within ten days after the receipt by
each
Eligible Distributee of the Company's notice. The Company may in its
discretion withdraw any registration statement filed pursuant to this
Section 5(a). Any Eligible Distributee shall be permitted to withdraw all
or part of the Registrable Securities from a Distributee Piggy-back
Registration at any time prior to the effective date of such Distributee
Piggy-back Registration.
(b) Priority on Piggy-back Registration. The Company shall use its
reasonable best efforts to cause the managing underwriter or underwriters
to permit the Registrable Securities requested by the holders of
Registrable Securities ("Selling Distributee Piggy-back Holders") to be
included in the Distributee Piggy-back Registration (on the same terms and
conditions, as nearly as practicable, as the securities included therein
for the account of the Company or any other securityholders of the
Company). Notwithstanding the foregoing, if the managing underwriter
advises the Company in writing that inclusion of the Registrable Securities
requested to be included in the offering would have a Material Adverse
Effect, then (i) if such Piggy-back Registration is incident to a primary
registration on behalf of the Company, the Company shall include in the
registration statement (A) first, all the securities to be sold by it and
(B) second, the maximum amount of securities requested to be included in
the Piggy-back Registration by the Selling Piggy-back Holders and all other
securityholders of the Company entitled to piggy-back registration rights
that would not cause a Material Adverse Effect (provided that the amount to
be included by the Selling Piggy-back Holders shall be allocated, subject
to any written agreement among the Selling Piggy-back Holders, on a Pro
Rata Basis among such Selling Piggy-back Holders and other securityholders
if the inclusion of all the requested Registrable Securities would cause a
Material Adverse Effect) and (ii) if such Piggy-back Registration is
incident to a secondary registration on behalf of holders of Common Stock
(other than Holders) pursuant to demand registration rights, the Company
shall include in such registration statement (A) first, the number of
securities of such Person(s) on whose behalf the registration is being made
(allocated among such Persons as they may determine, if applicable) and (B)
second, the number of Registrable Securities requested to be included in
such registration pursuant to this Section 3 in excess of the securities of
such Person(s) on whose behalf the registration is being made that, in the
opinion of the managing underwriters, would not have a Material Adverse
Effect, subject to any written agreement among the Selling Piggy-back
Holders, on a Pro Rata Basis among such Selling Piggy-back Holders, any
other securityholder entitled to exercise piggy-back registration rights
with respect to such registration rights and the Company, to the extent it
desires to include securities in such registration.
6. Holdback Agreements
(a) Restrictions on Public Sale by Holder of Registrable
Securities. To the extent not inconsistent with applicable law, each
Debtor or Eligible Distributee whose Registrable Securities are included in
a registration statement pursuant to this Agreement agrees not to effect
any public sale or distribution of such Registrable Securities or similar
securities of the Company, including a sale pursuant to Rule 144 under the
Securities Act, during the 14 days prior to, and during the period (not to
exceed 180 days) beginning on the commencement of an underwritten public
distribution under such registration statement pursuant to this Agreement
(except as part of such underwritten public distribution), if and to the
extent requested by the Company or by the managing underwriter or
underwriters.
(b) Restrictions on Public Sale by the Company. The Company agrees
not to effect any public sale or distribution of any securities similar to
those being registered hereunder, or any securities convertible into or
exchangeable or exercisable for such securities (other than any such sale
or distribution of such securities in connection with any merger or
consolidation by the Company or a subsidiary thereof, the acquisition by
the Company or a subsidiary thereof of the capital stock or substantially
all of the assets of any other person), during the 14 days prior to, and
during the period (not to exceed 180 days) beginning on, the commencement
of an underwritten public distribution of Registrable Securities, if and to
the extent requested by the managing underwriter.
7. Registration Procedures
In connection with any registration pursuant to this Agreement,
the Company will use its commercially reasonable efforts to effect the
registration and pursuant thereto the Company will as expeditiously as
possible:
(a) prepare and file with the Commission a 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 in accordance with the intended method of
distribution thereof, and use its reasonable best efforts to cause
such filed registration statement to become effective under the
Securities Act; provided, however, that, (i) at least five days
before filing a registration statement or prospectus or as promptly
as practicable prior to filing any
amendments or supplements thereto, the Company will furnish to each
Debtor that is a Selling Holder or, if after the Date of
Distribution, to ICH and to one counsel selected by it to represent
the Eligible Distributees who are Selling Holders copies of all such
documents proposed to be filed, which documents will be subject to
the review of such Selling Holders (and their counsel) or such
counsel, as applicable; and (ii) after the filing of a registration
statement, the Company will promptly notify each such Selling Holder
or such counsel, as applicable, of comments received from, or any
stop order issued or threatened by, the Commission and take all
reasonable actions required to respond to such comments or, as the
case may be, to prevent the entry of such stop order or to remove it
if it has been entered;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 180 days (or such
lesser period as is necessary for the underwriters in an underwritten
offering to sell unsold allotments) or, in the case of Piggy-back
Registrations pursuant to Section 3, for such time period as the
Company shall determine in its sole discretion (but in any event not
before the expiration of the 90-day period referred to in subsection
4(3) of the Securities Act and Rule 174 thereunder, if applicable)
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 as set forth in such registration statement;
(c) furnish to each Debtor that is a Selling Holder, prior to
filing a registration statement, copies of any document to be filed
as an exhibit to such registration statement or to be incorporated by
reference therein, and thereafter furnish to each Selling Holder such
number of copies of such registration statement, each amendment
thereto (including copies of any document to be filed as an exhibit
to such registration statement or to be incorporated by reference
therein), the prospectus included in such registration statement
(including each preliminary prospectus), and, promptly after the
effectiveness of a registration statement, to each Selling Holder the
definitive final prospectus filed with the Commission, all
supplements thereto 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;
(d) register or qualify such Registrable Securities under
such other securities or blue sky laws of such jurisdictions within
the United States as any Selling Holder reasonably (in light of such
Selling Holder's 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 and keep each such registration or qualification (or
exemption therefrom) effective during the period such registration
statement is effective; 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
Section 7(d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any
such jurisdiction;
(e) 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
and its Subsidiaries to enable the Selling Holder or Selling Holders
thereof to consummate the disposition of such Registrable Securities;
(f) notify each Selling Holder of such Registrable
Securities, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the occurrence
of an event requiring the preparation of a supplement or amendment to
such prospectus, and prepare and file such supplement, amendment or
any other required documents so that, as thereafter delivered to the
purchasers of such Registrable Securities, such 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 and promptly make available to each
Selling Holder any such supplement or amendment;
(g) in connection with an underwritten public distribution,
enter into customary agreements (including, if requested, an
underwriting agreement in customary form) and take such other actions
as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities;
(h) make available for inspection during business hours on
reasonable advance notice by any Selling Holder of such Registrable
Securities, any underwriter participating in any disposition pursuant
to such registration statement, and any attorney, accountant or other
professional retained by any such Selling Holder or underwriter
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause
the Company's officers, directors and employees to supply all
information reasonably requested by any such Inspector in connection
with such registration statement. Records which the Company
determines, in good faith, to be confidential and which it notifies
the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a material misstatement or omission in the
registration statement or (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Selling Holder of Registrable Securities agrees
that it will, upon learning that disclosure of such Records is sought
in a court of competent jurisdiction, give notice to the Company and
allow the Company, at the Company's expense, to undertake appropriate
action to prevent disclosure of the Records deemed confidential.
Each Selling Holder of Registrable Securities further agrees that
information obtained by it as a result of such inspections which is
deemed confidential by the Company shall not be used by it, and it
shall use its best efforts to cause any Inspector not to use such
confidential information, as the basis for any market transactions in
securities of the Company or for any purpose other than any due
diligence review with respect to decisions regarding such Selling
Holder's investment in the Registrable Securities, unless and until
such information is made generally available to the public;
(i) in the event such sale is pursuant to an underwritten
offering, use its commercially reasonable efforts to obtain for the
underwriters a comfort letter or comfort letters from the Company's
independent public accountants in customary form and covering such
matters of the type customarily covered by comfort letters as the
managing underwriter reasonably request;
(j) notify the Selling Holders and the managing underwriter
or underwriters, if any, promptly, and (if requested by any such
person) confirm such advice in writing, (1) when the prospectus or
any prospectus supplement
or post-effective amendment (or document incorporated by reference
therein) has been filed, and, with respect to the registration
statement or any post-effective amendment, when the same has become
effective, (2) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or for
additional information, (3) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and (4)
of the happening of any event which makes any statement made in the
registration statement, the prospectus or any document incorporated
therein by reference untrue or which requires the making of any
changes in the registration statement, the prospectus or any document
incorporated therein by reference in order to make the statements
therein not misleading;
(k) if requested by the managing underwriter or underwriters
or a Selling Holder participating in an underwritten offering,
promptly incorporate in a prospectus supplement or post-effective
amendment, as applicable, such information as the managing
underwriter or underwriters and the Selling Holders of a majority of
the Registrable Securities being sold agree should be included
therein which is not objectionable to the Company or its counsel
relating to the sale of the Registrable Securities, including,
without limitation, information with respect to the number of
Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to
any other terms of the underwritten (or best efforts underwritten)
offering of the Registrable Securities to be sold in such offering;
and make all required filings of such prospectus supplement or post-
effective amendment as soon as notified of the matters to be
incorporated in such prospectus supplement or post-effective
amendment;
(l) otherwise comply with all applicable rules and
regulations of the Commission, and make available to its
securityholders, 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;
(m) in the case of an underwritten offering, obtain an
opinion or opinions from counsel for the Company in customary form
and content to opinions given in similar transactions;
(n) make available to the registrar a supply of definitive
securities certificates promptly after a registration of the
Registrable Securities, and cooperate with each Selling Holder to
enable such certificates representing Registrable Securities to be in
such denominations and registered in such names as the managing
underwriters, if any, or Selling Holders may request; and
(o) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement (i) to be listed on
the principal securities exchange, if any, on which the same type or
class of securities issued by the Company are then so listed,
(ii) quoted on the NASDAQ (or the National Market System of NASDAQ)
if the same type or class of securities issued by the Company are
then so quoted or (iii) if such securities are not then listed on a
securities exchange or quoted on the NASDAQ (or the National Market
System of NASDAQ), to be listed on such securities exchange or
authorized to be quoted on the NASDAQ (or the National Market System
of NASDAQ) or such other national or regional securities exchange or
quotation system as the Selling Holders shall request, provided that
the applicable listing requirements are met; and
(p) take all other action reasonably requested by the Selling
Holders of a majority of the Registrable Securities and necessary to
effect the registration of the Registrable Securities contemplated
hereby.
The Company may require each Selling Holder of Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding the distribution of such Registrable
Securities as the Company may from time to time reasonably request in
writing and such other information as may be legally required in connection
with such registration. Notwithstanding anything herein to the contrary,
no Person may participate in any registration statement hereunder unless
such Person (x) agrees to sell such person's Registrable Securities on the
basis provided in any underwriting arrangements, if any, approved by the
Company (which approval shall not be unreasonably withheld) and (y)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements, and other documents reasonably required under the
terms of such underwriting arrangements; provided, however, that no such
Person shall be required to make any representations or warranties in
connection with any such registration other than representations and
warranties as to (i) such Person's ownership of his or its Registrable
Securities to be sold or transferred free and clear of all liens, claims,
and encumbrances, (ii) such Person's power and authority to effect such
transfer, and (iii) such matters pertaining to compliance with securities
laws as may be reasonably requested; provided further, however, that the
obligation of such Person to indemnify pursuant to any such underwriting
arrangements shall be several, not joint and several, among such Persons
selling Registrable Securities, and the liability of each such Person will
be in proportion to, and provided further that such liability will be
limited to, the net amount received by such Person from the sale of its
Registrable Securities pursuant to such registration.
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 7(f) hereof, such Selling Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Selling Holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by Section 7(f) hereof, or until it is advised in writing by
the Company that the use of the prospectus may be resumed, and, if so
directed by the Company, such Selling Holder will deliver to the Company
(at the Company's expense) all copies, other than permanent file copies
then in such Selling Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In
the event the Company shall give any such notice, the Company shall extend
the period during which such registration statement shall be maintained
effective by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 7(f) hereof to and
including the date when each Selling Holder of Registrable Securities
covered by such registration statement shall have received the copies of
the supplemented or amended prospectus contemplated by Section 7(f) hereof.
8. Registration Expenses
All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all
Securities Act registration and filing fees, fees and expenses associated
with filings required to be made with the National Association of
Securities Dealers, Inc., 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), printing expenses, messenger and delivery expenses, fees and
expenses of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incident to such performance), securities acts
liability insurance (if the Company elects to obtain such insurance), the
fees and expenses of any special experts retained by the Company in
connection with such registration, and fees and expenses of other persons
retained by the Company (all such expenses being herein called
"Registration Expenses") will be borne by the Company whether or not any
registration statement becomes effective; provided that in no event shall
Registration Expenses include any (i) underwriting discounts, commissions,
or fees attributable by the Debtors to the sale of the Registrable
Securities, and (ii) any fees and expenses of any counsel, accountants, or
other persons retained or employed by the Selling Holders and/or any
Eligible Distributees.
9. Indemnification; Contribution
(a) Indemnification by Company. The Company agrees to
indemnify and hold harmless each Selling Holder of Registrable Securities,
its officers, directors and agents and 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 (each such person being sometimes
hereinafter referred to as an "Indemnified Holder") from and against any
and all losses, claims, damages, liabilities and judgments (including,
without limiting the foregoing, the reasonable legal and other expenses
incurred in connection with any action, suit or proceeding) arising out of
or based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus or in
any amendment or supplement thereto or in any preliminary prospectus
relating to any registration statement to which this Agreement relates (a
"Registration Statement") 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 in light of the
circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, liabilities or judgments arise out of, or are
based upon, any such untrue statement or omission or allegation thereof
based upon information furnished in writing to the Company by such Selling
Holder or on such Selling Holder's behalf expressly for use therein;
provided, however, that the Company shall not be liable in any such case to
the extent that any such loss, claim,
damage, liability or judgment arises out of or is based on an untrue
statement or alleged untrue statement or omission or alleged omission made
in any preliminary prospectus, if such Selling Holder failed to send or
deliver a copy of the final prospectus (as appropriately supplemented) with
or prior to the delivery of written confirmation of the sale of such
Registrable Securities by such Selling Holder to the person asserting such
loss, claim, damage, liability or judgment who purchased Registrable
Securities that are the subject thereof from such Selling Holder if it is
determined that it was the responsibility of such Selling Holder to provide
such Person with a copy of the final prospectus (as appropriately
supplemented) and the delivery of such final prospectus (as appropriately
supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability or judgment. The Company also agrees to indemnify and
provide contribution arrangements to any underwriters of the Registrable
Securities, their officers and directors and each person who controls such
underwriters (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) (collectively, "Securities Professionals")
on substantially the same basis as that of the indemnification of the
Selling Holders provided in this Section 9 if requested.
(b) Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any Indemnified Holder in respect of which indemnity may
be sought from the Company, such Indemnified Holder shall promptly notify
the Company in writing, and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such
Indemnified Holder and the payment of all reasonable expenses. Such
Indemnified Holder shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the reasonable
fees and expenses of such counsel shall be at the expense of such
Indemnified Holder unless (i) the Company has agreed to pay such fees and
expenses or (ii) the Company shall have failed to promptly assume the
defense of such action or proceeding and to employ counsel reasonably
satisfactory to the Indemnified Holder or (iii) the named parties to any
such action or proceeding (including any impleaded parties) include both
such Indemnified Holder and the Company, and such Indemnified Holder shall
have been advised in writing by counsel that there is a conflict of
interest on the part of counsel employed by the Company to represent such
Indemnified Holder (in which case, if such Indemnified Holder notifies the
Company in writing that it elects to employ separate counsel at the expense
of the Company, the Company shall not have the right to assume the defense
of such action or proceeding on behalf of such Indemnified Holder, it being
understood, however, that the
Company shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to appropriate local counsel)
at any time for such Indemnified Holder and any other Indemnified Holders,
which firm shall be designated in writing by a majority of such Indemnified
Holders). The Company shall not be liable for any settlement of any such
action or proceeding effected without the Company's written consent (which
consent shall not be unreasonably withheld), but if settled with its
written consent, or if there is a final, unappealable judgment for the
plaintiff in any such action or proceeding, the Company agrees to indemnify
and hold harmless such Indemnified Holders from and against any loss or
liability (to the extent stated above) by reason of such settlement or
judgment. The Company will not consent to entry of any judgment or enter
into any settlement which has not been consented to in writing by such
Indemnified Holder, which consent shall not be unreasonably withheld.
(c) Indemnification by Holders of Registrable Securities.
Each Selling Holder, severally and not jointly with other Selling Holders,
agrees to indemnify and hold harmless the Company, its directors and
officers employees and agents 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 to the same extent as the foregoing
indemnity from the Company to such Selling Holder, but only with respect to
losses, claims, damages, liabilities and judgments arising out of, or based
upon, any such untrue statement or omission or allegations thereof based
upon information furnished in writing by such Selling Holder or on such
Selling Holder's behalf expressly for use in any registration statement or
prospectus or any amendment or supplement thereto, or any preliminary
prospectus relating to the Registration Statement; provided, however, that
with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary or final prospectus, the
indemnity agreement contained in this subsection shall not apply to the
extent that any such losses, claims, damages, liabilities and judgments
result from the fact that a final prospectus (as appropriately
supplemented) was not sent or given o the person asserting any such losses,
claims, damages, liabilities and judgments at or prior to the written
confirmation of the sale of the Registrable Securities concerned to such
person if it is determined that it was the responsibility of the Company or
any other person or entity (other than the Selling Holder) to provide such
person with a final prospectus (as appropriately supplemented) and such
final prospectus (as appropriately supplemented) would have cured the
defect giving rise to such loss, claims, damages,
liabilities and judgments. In case any action or proceeding shall be
brought against the Company or its directors, officers, employees or agents
or any such controlling person, in respect of which indemnity may be sought
against such Selling Holder, such Selling Holder shall have the rights and
duties given to the Company, and the Company or its directors, officers,
employees or agents or such controlling person shall have the rights and
duties given to such Selling Holder by the preceding Section 9(b).
Notwithstanding the foregoing, in no event shall the liability of any
Selling Holder pursuant to this Section 9(c) exceed the net proceeds
received by such Selling Holder from the sale of Registrable Securities.
Each Selling Holder also agrees to indemnify and hold harmless Securities
Professionals with respect to the matters referred to in this Section 9(c)
on substantially the same basis as that of the indemnification provided to
the Company. The Company shall be entitled to receive indemnities from
Securities Professionals participating in the distribution, to the same
extent as provided above with respect to information so furnished in
writing by such persons specifically for inclusion in any prospectus or
registration statement or any amendment or supplement thereto or any
preliminary prospectus.
(d) Contribution. If the indemnification provided for in
this Section 9 is unavailable to the Company, the Indemnified Holders or
the Securities Professionals in respect of any losses, claims, damages,
liabilities or judgments referred to herein (other than by reason of
exceptions provided in subsection 9(a) or (c)), 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 Indemnified Holder on the other, in such
proportion as is appropriate to reflect the relative fault of the Company
and of each Indemnified Holder in connection with such statements or
omissions, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of each Indemnified
Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by 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 Indemnified Holders agree that it would not
be just and equitable if contribution pursuant to this Section 9(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.
Notwithstanding the provisions of this Section 9(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 subsection
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. 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.
(e) Survival. The indemnity and contribution agreements
contained in this Section 9 shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement or any
underwriting agreement, (ii) any investigation made by or on behalf of any
Indemnified Holder or by or on behalf of the Company, and (iii) the
consummation of the sale or successive resale of the Registrable
Securities.
10. Miscellaneous
(a) Remedies. In addition to being entitled to exercise all
rights provided herein and granted by law, including recovery of damages,
each Holder and Eligible Distributee will be entitled to specific
performance of his rights under Sections 2 and 4 of this Agreement. The
Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) Compliance with Certain Rules. Each of the parties
hereto undertakes, with respect to any of the securities of the Company, to
comply with the provisions of Rules 10b-6 and 10b-7 of the Exchange Act.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the Company
has obtained the written consent of Selling Holders of at least a majority
of the Registrable Securities.
(d) No Conflicting Agreements. The Company will not on or
after the date of this Agreement enter into, any the Company has not prior
to the date hereof entered into, any agreement with respect to any of its
securities which otherwise conflicts with the provisions hereof.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
If to the Debtors:
c/o I.C.H. Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
5400 Renaissance Tower
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
If to the Company:
Southwestern Financial Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
With a copy to:
Weil, Gotshal & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to any Eligible Distributee:
At the address specified by it upon its
execution of a counterpart to this Agreement.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered;
five business days after being deposited in the mail, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on
the day delivered if sent by an air courier guaranteeing overnight
delivery.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of
the parties, including without limitation and without the need for an
express assignment, subsequent holders of Registrable Securities.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Texas.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, under present or future laws effective
during the term of this Agreement, such provision shall be fully severable;
this Agreement shall be construed and enforced as if such illegal, invalid,
or unenforceable provision had never comprised a part of this Agreement;
and the remaining provisions of this Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of each such
illegal, invalid, or unenforceable provision, there shall be added
automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid, or unenforceable provision as may be possible and
be legal, valid and enforceable.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
by the Company with respect to the Registrable Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
SOUTHWESTERN FINANCIAL CORPORATION
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Senior Vice President
I.C.H. CORPORATION
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
SWL HOLDING CORPORATION
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
CARE FINANCIAL CORPORATION
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
