EXHIBIT 10.8
WARRANT AGREEMENT
THIS WARRANT AGREEMENT is made and entered into as of this 25th day of
August, 1997 between Aegis Mortgage Acceleration Corp., a Delaware corporation
(the "Company") and Wachovia Bank, N.A. (the "Holder").
BACKGROUND
A. The Company is authorized to issue two classes of common stock,
one designated Class A Common Stock and the other designated Class B Common
Stock. Each share of Class B Common Stock is convertible into one share of Class
A Common Stock. The Class B Common Stock has no voting rights.
B. The Company is issuing warrants to the Holder in connection with
Revolving Facilities provided to the Company by Holder, representing initially
three percent of the outstanding shares of common stock of the Company on a
fully diluted basis.
THE PARTIES AGREE AS FOLLOWS:
1. Definitions.
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1.1. Definitions. The following terms have the meaning indicated:
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"Act" means the Securities Act of 1933, as amended from time to
time, or any successor statute.
"Affiliate" means, with respect to any Person, any of (i) a
director or executive officer of such Person, (ii) any holder of 10% or more of
any class of capital stock of such Person, or (iii) any other Person that,
directly or indirectly, controls, or is controlled, by or is under common
control with, such Person.
"Charter Documents" of a Person means the articles or certificate
of incorporation, the by-laws and any other charter documents of such Person, as
amended or restated and as in effect as of the Closing Date.
"Class A Common" means a class of the Company's Common Stock with
full voting rights.
"Class B Common" means a class of the Company's Common Stock
without voting rights but which is otherwise identical to Class A Common and
which is convertible into Class A Common pursuant to the Company's Charter
Documents.
"Closing Date" means the date of execution of the Credit
Agreement.
"Credit Agreement" means the Credit Agreement of even date
between the Company and Wachovia.
"Commission" means the Securities and Exchange Commission or any
other federal agency administering the Act.
"Common Stock" means the Class A Common and Class B Common of the
Company.
"Common Stock Outstanding" means the number of shares of Common
Stock outstanding plus the number of shares of common stock issuable upon
exercise of all outstanding Options and upon conversion of all Convertible
Securities.
"Competitor" means the Person identified in a list from the
Company to Holder in writing prior to the Closing and such additional Persons as
Holder may approve from time to time, which approval will not be unreasonably
withheld.
"Convertible Security" means indebtedness or shares of capital
stock convertible into or exchangeable for shares for Common Stock.
"Exercise Price" means the price of $.01 per share to purchase a
share of Common Stock pursuant to a Warrant adjusted from time to time as
provided in Article 6.
"Holder" means any registered holder of Warrants or Warrant.
"Minimum Outstandings" means one-half the credit available under
the Revolving Facility at any time or from time to time.
"Option" means the right to purchase Common Stock or a
Convertible Security pursuant to an option, warrant or other agreement.
"Person" means a corporation, an association, a partnership, a
limited liability company, an organization, an individual, a government or a
subdivision thereof or a governmental agency.
"Principal Stockholders" means any group of stockholders of the
Company owning more than one-third of the Common Stock Outstanding.
"Put Date" has the meaning ascribed in paragraph 7.2.2.
"Put Notice" has the meaning ascribed in paragraph 7.2.2.
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"Put Price" has the meaning ascribed in paragraph 7.2.3.
"Register", "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Act, other than on Forms X-0, X-0 or any similar successor
forms, and the declaration or ordering of the effectiveness of such registration
statement.
"Stockholder Agreement" means that certain Stockholder Agreement
entered into as of April 30, 1993 by and among the Company and the stockholders
of the Company as attached hereto as Exhibit B.
"Wachovia" means Wachovia Bank., N.A.
"Warrant Certificate" means a certificate representing one or
more of the Warrants, registered in the name of the Holder, substantially in the
form of Exhibit A.
"Warrants" means the warrants issued pursuant to this Warrant
Agreement, which, when exercised, give the Holder the right to obtain a share of
Common Stock per warrant, subject to adjustment.
"Warrant Shares" means the shares of Common Stock acquired or
acquirable upon exercise of the Warrant.
2. Warrants.
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2.1. Initial Issuance of Warrants. On the Closing Date, in
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consideration of the Revolving Facility by Wachovia, the Company will issue to
the Holder a warrant to purchase 67,662 shares of Common Stock which, upon
issuance, will be equivalent to three percent of the Common Stock Outstanding at
the Closing Date with an exercise price of $ .01 per share.
2.2. Additional Issuance. At the end of the eighteenth month
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following the Closing Date if the Company has not had, under the Revolving
Facility during such period, weighted average loans outstanding equal to at
least 50% of the maximum amount available under the Revolving Facility the
Company shall issue to the Holder a warrant to purchase an amount of Common
Stock which is equal to (i) 22,554 shares multiplied by (ii) a fraction the
numerator of which is (a) weighted average Minimum Outstandings minus (b)
weighted average loans outstanding and the denominator of which is the weighted
average Minimum Outstandings.
2.3. Exercisablity. Any warrants pursuant to this Warrant Agreement
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shall be exercisable only until the fifth anniversary of the Closing Date.
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2.4. Registered Holder. The Company may deem the registered Holder of
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a Warrant Certificate as the absolute owner for all purposes, notwithstanding
any notation of ownership or other writing thereon made by anyone.
2.5. Reservation of Shares. The Company shall, so long as Warrants
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remain outstanding, have authorized and reserved a number of shares of Class A
Common and Class B Common sufficient for the exercise of the Warrants. Upon
issuance such shares shall be validly issued, fully paid and non-assessable.
2.6. No Fractional Shares. The Company need not issue fractional
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shares upon exercise of the Warrants, but in lieu thereof shall round the
issuance to the next lower whole share.
2.7. Mandatory Exercise of Warrants and Conversion of Warrant Shares.
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Not later than immediately prior to the consummation of the initial underwritten
public offering of Class A Common Stock of the Company (or if reclassified the
equivalent class of Company's common stock being offered to the public) Holder
shall exercise the Warrant and/or convert the Warrant Shares to Class A Common
Stock if such public offering involves the sale of Common Stock of the Company
aggregating not less than $20 million and the per share public offering price is
not less than $5.00 (before any adjustment under Article 6).
2.8. Optional Conversion. In connection with, or the reasonable
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expectation of, (i) any public offering or public sale of Class A Common
(including a registered offering and a sale pursuant to Rule 144 issued by the
Commission or any similar rule then in force), (ii) the sale to any person or
group of persons (as defined in Section 13(d)(3) of the Exchange Act) of
securities possessing in the aggregate the ordinary voting power to elect a
majority of the Company's directors, which sale has been approved by the
Company's board of directors, (iii) the sale to any persons or group of persons
(as defined in Section 13(d)(3) of the Exchange Act) (provided such person or
group of persons immediately after such sale owns or has the right to acquire
not more than 2 percent of the Class A Common then outstanding), (iv) the sale
to any person or group of persons that possess or will possess in the aggregate
the ordinary voting power to elect a majority of the Company's directors
(excluding the shares of Class B Common being converted); or (v) any merger or
consolidation pursuant to which any person or group of persons will possess in
the aggregate the ordinary voting power to elect a majority of the Company's
directors, which merger or consolidation has been approved by the Company's
board of directors, each record holder of Class B Common is entitled to convert
into the same number of shares of Class A Common any or all of such Holder's
shares of Class B Common actually being distributed to the public, sold to an
underwriter, broker-dealer or market maker for actual sale to the public or sold
to the third-party purchaser.
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2.9. Stockholders Agreement. Prior to the exercise of the Warrants
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under this Agreement, the Holder shall, as a condition precedent to such
exercise, become a party to the Stockholders Agreement by exercising a
counterpart thereof. To the extent that there is any inconsistency between this
Agreement, the Warrant Certificate and the Stockholders Agreement, the terms of
the Stockholders Agreement shall supersede and control the interpretation of
this Agreement and the Warrant Certificate. The right of the Holder to (i) put
the Warrants pursuant to Section 7.2 of this Agreement and (ii) receive notice
of and participate in certain transfers of shares owned by Xxxx X. Xxxxxx
pursuant to Section 7.3 of this Agreement shall be deemed in addition to and not
inconsistent with the Stockholders Agreement.
3. Representations and Warranties.
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3.1. The Company:
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The Company represents and warrants that:
3.1.1 Organization and Authorization. Company is a corporation
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duly organized and existing under the laws of the State of Delaware, and is
qualified to do business in California and in each other jurisdiction where the
failure to qualify would have a material adverse effect upon the Company. The
execution, delivery and performance of this Agreement and of any instrument or
agreement required by this Agreement are within Company's powers, have been duly
authorized, and are not in conflict with the terms of the Company's Charter
Documents.
3.1.2 No Conflicts. The execution, delivery and performance of
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this Agreement and of any instrument or agreement required by this Agreement are
not in conflict with any law or any indenture, or undertaking to which Company
is a party or by which Company is bound or affected.
3.1.3 Compliance with Laws. Company has complied, in all
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material respects, with all known federal, state, and local laws, rules, and
regulations affecting its business.
3.1.4 Capitalization. The Company has issued and outstanding
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prior to the issuance of the Warrant shares of capital stock and Convertible
Securities and Options which upon conversion or exercise aggregate 2,255,394
shares of Class A Common Stock which are designated 299,815 shares of Class A
Common Stock, 160,000 shares of Class B Common Stock, 680,000 shares of Series A
Preferred Stock, 416,667 shares of Series B Preferred Stock, 319,149 shares of
Series C Preferred Stock, and options and warrants to purchase 379,763 shares of
Class A Common Stock. The Company is obligated to issue up to 58,823 shares of
Class B Common Stock pursuant to the 1983 asset purchase agreement with Grant
Financial Group.
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3.2. The Holder:
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The Holder represents and warrants that:
3.2.1 Investment. The Warrants and Warrant Shares are or
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will be acquired for investment for Holder's own account and not with a view to
distribution in violation of the Act.
3.2.2 Accredited Investor. The Holder qualifies as an
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"accredited investor," within the meaning of the regulations of the Commission
promulgated under the Act.
4. Covenants.
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4.1. Financial and Other Information. Company shall deliver to Holder
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in form and detail satisfactory to Holder, and in such number of copies as
Holder may request:
(a) As soon as available but no later than 120 days after the
close of each of its fiscal years, a complete copy of Company's financial
statements, which shall include Company's statements of operations, stockholders
equity and cash flows for such year, audited by an independent public accountant
selected by Company and satisfactory to Holder.
(b) As soon as available but no later than 45 days after the
close of each month, Company's balance sheet as of the close of such month, and
Company's statements of operations, stockholders equity and cash flows, all as
prepared by Company for its own use and certified by a duly authorized officer
of Company as being complete and correct and fairly presenting Company's
financial condition and results of operations in accordance with accrual
accounting principles and practices consistency applied.
(b) Promptly, such other statements, budgets, forecasts, reports
or other financial information concerning Company's business activities and
financial condition as Holder may reasonably request from time to time.
4.2. Books, Records, Audits and Inspections. Company shall maintain
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adequate books, accounts and records and prepare all financial statements
required hereunder in accordance with the accrual method of accounting
consistently applied, and in compliance with the regulations of any governmental
regulatory body having jurisdiction over Company or its business and permit
employees or agents of Holder at any reasonable time to inspect Company's
properties, and to examine or audit Company's books, accounts and records and
make copies and memoranda thereof. In the event any properties, books, accounts
or records are in the possession of or under the control of a third party,
Company shall direct and hereby authorizes such third party to
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permit access to Holder's employees or agents for the purpose of performing the
inspections, examinations or audits permitted under this paragraph.
4.3. Existence of Properties. Company shall maintain and preserve
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Company's existence and all rights, privileges and orderly, efficient and
customary manner, keep all Company's properties in good working order and
condition, and from time to time make all needed repair, renewals or
replacements of such property.
4.4. Compliance with Laws. Company shall at all times comply with, or
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cause to be complied with, all laws, statutes, rules, regulations, orders and
directions of any governmental authority having jurisdiction over Company or
Company's business in all material respects.
5. Transfer of Warrants and Warrant Shares.
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5.1. Transfers. Subject to other applicable provisions of this Article
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5, the Holder may transfer Warrant Certificates and Warrant Shares to Affiliates
of Holder if the Warrant Certificate to be transferred is accompanied by a form
of assignment substantially in the form of Exhibit A-1 duly executed by Holder.
5.2. Right of First Refusal Upon Transfer. If the Holder wishes to
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transfer any or all of such Holder's Warrants or Warrant Shares or any interest
therein to any person other than a Competitor, the Holder shall first offer such
Warrants or Warrant Shares to the Company by providing it with a notice (the
"Transfer Notice") naming the proposed transferee, specifying the number of
Warrants or Warrant Shares to be transferred, the price per Warrant or Warrant
Share and all other terms of the transfer and offering to sell such Warrants or
Warrant Shares to the Company at the same price and upon the same terms and
conditions. The Company shall have 15 days from the receipt of the Transfer
Notice within which to give the Holder written notice (the "Purchase Notice")
that it agrees to purchase all such Shares at the price and on the terms and
conditions set forth in the Transfer Notice, and if such Purchase Notice is
given within such 15-day period, the Company shall have 45 days from receipt of
the Transfer Notice within which to complete the purchase of such Warrants or
Warrant Shares at the price and on the terms set forth in the Transfer Notice.
If the Company does not deliver a Purchase Notice to the Holder within 20 days
after receipt of a Transfer Notice from the Holder, Holder shall have the right,
for a period of 90 days from the day upon which the Company received the
Transfer Notice, to transfer such Warrants and Warrant Shares to the transferee
named in the Transfer Notice or to a Person which is not a Competitor; provided,
however, that such transfer must be at a price not less than the price offered
to the Company in the Transfer Notice, for the number of Warrants or Warrant
Shares specified in the Transfer Notice and on terms and conditions no more
favorable than those specified in the Transfer Notice. The Company may assign
its right under this paragraph 5.2 to any other person or entity, including
other stockholders of the Company.
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5.3. Compliance With Act. All transfers of Warrant Certificates and
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Warrant Shares under this Article 5 shall be in compliance with the Act.
6. Anti-dilution Protection.
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6.1. Change in Warrant Exercise Price Upon Issuance of Securities. If
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the Company issues or sells any shares of Common Stock or issues any Convertible
Security or Option (except options pursuant to employee stock programs adopted
by the board of directors of the Company) entitling the issuees to acquire
shares of Common Stock for a consideration less than $4.00 per share (before
adjustment for stock splits described in paragraph 6.3) the Exercise Price shall
be reduced to the price determined by multiplying the then Exercise Price by a
fraction (i) the numerator of which shall be (a) the Common Stock Outstanding
immediately prior to such issuance or sale plus (b) the number resulting from
dividing (x) the aggregate consideration received by the Company upon such
issuance or sale by (y) $4.00 and (ii) the denominator of which shall be the
Common Stock Outstanding immediately after and giving effect to such issuance or
sale.
For purposes of paragraph 6.1, the following provisions shall
also be applicable:
6.1.1 Cash Consideration. If the Company issues the Common Stock
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Option or Convertible Security for cash, the consideration shall be the gross
price without deduction of reasonable compensation or discount paid or allowed
to underwriters or placement agents or any reasonable expenses incurred in
connection with such issuance.
6.1.2 Non-Cash Consideration. If the Company issues the Common
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Stock Option or Convertible Security for a consideration wholly or partially
other than cash, the fair value of such consideration as determined by the board
of directors of the Company in the good faith exercise of its business judgment
shall be deemed to be the value for purposes of paragraph 6.1, except that any
Common Stock Option or Convertible Security issued for services shall be deemed
to be issued for no consideration.
6.1.3 Options and Convertible Securities. If the Company issues
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an Option or Convertible Security with an exercise or conversion price less than
$4.00 per share of Common Stock the shares issuable upon exercise of such Option
or Convertible Security shall immediately be deemed part of Common Stock
Outstanding.
6.2. Termination of Option or Conversion Rights.
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If any right to purchase Common Stock under any Option or any
right to convert or exchange any Convertible Security terminates or expires, the
Exercise Price shall, upon such termination, be changed to the Exercise Price
that would have been
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in effect at the time of such expiration or termination had such Option or
Convertible Security, to the extent outstanding immediately prior to such
expiration or termination, never been issued, and the shares of Common Stock
issuable thereunder shall no longer be deemed to be Common Stock Outstanding.
6.3. Stock Splits or Stock Dividends.
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If the outstanding shares of Common Stock are subdivided into a
greater number of shares of Common Stock by virtue of stock splits or stock
dividends, the Exercise Price shall, simultaneously with the effectiveness of
such subdivision, be proportionately reduced, and conversely, if the outstanding
shares of Common Stock shall be combined into a smaller number of shares of
Common Stock, the Exercise Price shall, simultaneously with the effectiveness of
such combination, be proportionately increased.
6.4. Successive Changes.
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The provisions of this Article 6 shall apply to successive
issuances, subdivisions and combinations on or of shares of Common Stock after
the date of this Agreement.
6.5. Adjustment of Shares Issuable Upon Exercise of Warrants.
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Upon each adjustment of the Exercise Price as a result of the
calculations made pursuant to this Article 6, each Warrant outstanding prior to
the making of the adjustment in the Exercise Price shall thereafter be treated
as that number of Warrants, and shall evidence the right to purchase, at the
adjusted Exercise Price, that number of shares of Common Stock, obtained by (i)
multiplying (a) the number of shares of Common Stock purchasable upon exercise
of a Warrant prior to adjustment by (b) the Exercise Price in effect prior to
adjustment, and (ii) dividing the product so obtained by the Exercise Price in
effect after such adjustment of the exercise price.
6.6. Notices.
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6.6.1 Notice of Dividends. Upon the declaration of any dividends
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payable with respect to any class of common stock in cash or other property the
Company shall give written notice to Holder not fewer than 10 days prior to the
payment date.
6.6.2 Notice of Potentially Dilutive Event. If the Company
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proposes to issue securities which would result in an adjustment of the Exercise
Price, the Company will give written notice to the Holder of such proposed event
not fewer than 10 days prior to the occurrence of such event.
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6.6.3 Notice of Adjustment. Upon the occurrence of each
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adjustment or readjustment of the Exercise Price, the Company at its expense
shall compute such adjustment or readjustment in accordance with the terms
hereof. Promptly, and in no case more than 20 days after the occurrence of such
adjustment or readjustment, the Company shall furnish the Holder with a
certificate signed by the Company's President or Senior Financial Officer
setting forth in reasonable detail (i) the Exercise Price after such adjustment
or readjustment, (ii) the method of calculation and the facts upon which such
calculation is based and (iii) the number of shares of Common Stock purchasable
upon exercise of a Warrant after such adjustment or readjustment. At any time or
from time to time, upon written request from any Holder, the Company shall at
its expense provide such Holder a certificate setting forth the current exercise
price and the number of shares of Common Stock which at that time would be
received by such Holder upon exercise of its Warrants.
7. Liquidity Provisions.
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7.1. Registration Rights.
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7.1.1 Notice of Registration. Subject to the terms of this
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Agreement, in the event the Company decides to register with the Commission any
of its Common Stock (either for its own account or the account of its security
holders), the Company will: (i) promptly give the Holder written notice thereof
(which shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable Blue Sky or other state
securities laws), and (ii) include in such registration (and any related
qualification under Blue Sky laws or other state securities laws), and in any
underwriting involved therein, all the Warrant Shares specified in a written
request delivered to the Company by the Holder within 15 days after delivery of
such written notice from the Company.
7.1.2 Notice of Underwriting. If the registration of which the
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Company gives notice is for a public offering involving an underwriting, the
Company shall so advise the Holder as part of the written notice given pursuant
to paragraph 7.1.1. In such event the right of the Holder to registration and
the inclusion of such Holder's Warrant Shares in such underwriting shall be
conditioned upon such underwriting to the extent provided in this paragraph
7.1.2. If the Holder proposes to distribute Warrant Shares through such
underwriting it shall (together with the Company and the other stockholders
distributing their Shares through such underwriting) enter into an underwriting
agreement with the underwriter's representative for such offering. Holder shall
have no right to participate in the selection of the underwriters.
7.1.3 Marketing Limitations. In the event the underwriter's
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representative advises the Holder seeking registration of Warrant Shares
pursuant to this paragraph 7.1.3 in writing that market factors require a
limitation of the number of shares
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of the Company to be underwritten, the underwriter's representative may: (i) in
the case of the Company's initial registered public offering, exclude some or
all of such shares from such registration and underwriting pro rata based on the
number of Warrant Shares requested to be registered by the Holder and (ii) in
the case of any subsequent registered public offering subsequent to the initial
public offering, limit the number of shares to be included in such registration
and underwriting to not less than 10% of the shares of Common Stock included in
such registration.
7.1.4 Withdrawal. If the Holder disapproves of the terms of any such
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underwriting, the Holder may elect to withdraw therefrom by written notice to
the Company and the underwriter delivered at least seven days prior to the
effective date of the registration statement. Any Warrant Shares excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
7.1.5 Expenses. The Company shall bear the expenses incurred in
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complying with this Article 7, including, without limitation, all federal and
state registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Company and one special counsel for the Holder
and stockholders (if different from the Company), blue sky fees and expenses,
and the expense of any special audits incident to or required by any such
registration. The Holder shall bear all underwriting discounts and selling
commissions applicable to the sale of the Warrant Shares pursuant to this
Agreement.
7.1.6 Registration Procedures. The Company will keep the Holder
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advised as to the initiation and completion of such registration. At its expense
the Company will furnish such number of prospectuses (including preliminary
prospectuses) and other documents as the Holder from time to time may reasonably
request.
7.1.7 Information Furnished by Holder. It shall be a condition
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precedent of the Company's obligations under this Article 7 that the Holder
furnish to the Company such information regarding the Holder as the Company may
reasonably request.
7.1.8 Market Stand-off. The Holder hereby agrees, if so requested by
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the Company and the underwriter's representative (if any), the Holder shall not
sell or otherwise transfer any Warrant Shares or other securities of the Company
during the 180-day period following the effective date of a registration
statement of the Company filed under the Act; provided that such restriction
shall only apply to the first two registration statements of the Company to
become effective which include securities to be sold on behalf of the Company to
the public in an underwritten offering.
7.1.9 Securities Exchange Act of 1934. Following the effective date
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of the first registration statement filed by the Company for the offering of its
securities to the general public, the Company shall file with the Commission in
a timely
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manner all reports and other documents required of the Company under the
Securities Exchange Act of 1934, as amended.
7.1.10 Indemnification.
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7.1.10.1 Company's Indemnification of Holder. To the
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extent permitted by law, the Company will indemnify the Holder, each of its
officers, directors and constituent partners, legal counsel for the Holder and
stockholders, and each person controlling the Holder, with respect to which
registration, qualification or compliance of Warrant Shares has been effected
pursuant to this Agreement, and each underwriter, if any, and each person who
controls any underwriter against all claims, losses, damages or liabilities (or
actions in respect thereof) to the extent claims, losses, damages or liabilities
arise out of or are based upon any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus or other document
(including any related registration statement) incident to any such
registration, qualification or compliance, or are based on 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, or any violation by
the Company of any rule or regulation promulgated under the Act applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance; and the
Company will reimburse the Holder, each such underwriter and each person who
controls the Holder or underwriter, for any legal and any other expenses
reasonably incurred in connection with investigation or defending any such
claim, loss, damage, liability or action if settlement is effected without the
consent of the Company (which consent shall not unreasonably be withheld); and
provided, further, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based upon any untrue statement or omission based upon written information
furnished to the Company by the Holder or controlling person and stated to be
for use in connection with the offering of securities of the Company.
7.1.10.2 Holder's Indemnification of Company. To the
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extent permitted by law, the Holder will, if Warrant Shares are included in the
securities as to which such registration, qualification or compliance is being
effected pursuant to this Agreement, indemnify the Company, each of its
directors and officers, each legal counsel and independent accountant of the
Company, each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such underwriter
within the meaning of the Act, and each other stockholder of the Company whose
shares are registered, each of its officers, directors and constituent partners
and each person controlling such other stockholder; against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
upon any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other
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document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Holder of any rule or regulation promulgated
under the Act applicable to the Holder and relating to action or inaction
required of the Holder in connection with any such registration, qualifications
or compliance; and will reimburse the Company, such stockholders, such
directors, officers, partners, persons, law and accounting firms, underwriters
or control persons for any legal and any other expenses reasonably incurred in
connection with investigation or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by the Holder and stated to be specifically for use in
connection with the offering of securities of the Company provided, however,
that the Holder's liability under this paragraph 7.1.10.2 shall not exceed the
Holder's proceeds from the offering of securities made in connection with such
registration.
7.1.10.3 Indemnification Procedure. Promptly after
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receipt by an indemnified party under this paragraph 7.1.10 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this paragraph 7.1.10,
notify the indemnifying party in writing of the commencement thereof and
generally summarize such action. The indemnifying party shall have the right to
participate in and to assume the defense of such claim; provided, however, that
the indemnifying party shall be entitled to select counsel for the defense of
such claim with the approval of any parties entitled to indemnification, which
approval shall not be unreasonably withheld, unless the Holder determines that
there may be a conflict between the position of the Company and the Holder in
conducting the defense of such action, suit or proceeding by reason of
recognized claims for indemnity under this paragraph 7.1.10, then counsel for
such party shall be entitled to conduct the defense to the extent reasonably
determined by such counsel to be necessary to protect the interest of such party
at the expense of the indemnifying party. The Company shall not be required to
pay the costs of more than one counsel for Holder and other stockholders
pursuant to this paragraph. The failure to notify an indemnifying party promptly
of the commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such indemnifying party,
to the extent so prejudiced, of any liability to the indemnified party under
this paragraph 7.1.10, but the omission so to notify the indemnifying party will
not relieve such party of any liability that such party may have to any
indemnified party otherwise other than under this paragraph 7.1.10.
7.1.11 Limitation on Registration Rights. Shares included in
---------------------------------
a request for registration under this Article 7 shall not be eligible for
registration under this Article 7 if either (i) the Warrant Shares have
previously been sold to the public, or (ii) no
13
registration under the Act is required in connection with the disposition of
such Warrant Shares pursuant to Rule 144 under the Act.
7.1.12 Conversion of Shares. As a condition to the inclusion
--------------------
of any Warrant Shares in a registration statement pursuant to this Article 7, if
such Warrant Shares are not shares of Class A Common Stock of the Company, the
Holder must convert, or agree to convert such Warrant Shares, into shares of
Class A Common Stock at or prior to the closing of the offering contemplated by
such registration statement.
7.2. Holder's Right to Put.
---------------------
7.2.1 Put Right. The Holder may not put the Warrants
---------
or Warrant Shares until the earlier to occur of (i) the sixth anniversary of the
Closing Date, or (ii) a change of control of the Company in a transaction or
series of transactions where the holders of the Class A Common Stock immediately
preceding the transaction own fewer than 50% of the voting securities of Company
or surviving entity after the transaction. Within 90 days after such occurrence,
the Holder may at any time, or from time to time, put to the Company all or any
portion of its Warrants and Warrant Shares.
7.2.2 Exercise of Put Right. The right to put Warrants
---------------------
or Warrant Shares shall be exercised by providing the Company a notice ("Put
Notice") specifying the number of Warrants and Warrant Shares to be put and the
date on which the Put Price is to be paid ("Put Date") and the Put Price. The
Put Notice shall be given at least 90 days before the Put Date.
7.2.3 Put Price. The put price to be paid per Warrant
---------
or Warrant Share by the Company ("Put Price") shall be $5.00 per Warrant or
Warrant Share, subject to application of the anti-dilution provisions in this
Warrant Agreement.
7.2.4 Payment of Put Price. On the Put Date, upon
--------------------
delivery to the Company of the Warrant Certificates representing the Warrants
put and the certificates representing the Warrant Shares put, the Company shall
pay in cash the Put Price for each Warrant or Warrant Share so delivered.
7.2.5 Protection of Put Right. The Company shall not
-----------------------
enter into any agreement, understanding or transaction pursuant to which the
Company shall be required, or makes a covenant, representation or warranty, to
prevent or to impair the exercise of the put rights provided for in this
paragraph 7.2 or the obligation of the Company to pay the Put Price. If the
Company is unable in accordance with applicable state corporation statutes
lawfully to purchase all of the Warrants and Warrant Shares which are the
subject of a Put Notice, the Company shall if so requested in writing by the
Holder, (i) purchase in accordance with the Put Notice the maximum number of
such Warrants or Warrant Shares put which the Company may lawfully purchase and
(ii) in one or more installments, at the earliest time that the Company may
lawfully do so,
14
purchase all remaining Warrants and Warrant Shares put and pay interest at the
Reference Rate set forth in the Credit Agreement on the amount of the aggregate
Put Price attributable to such remaining Warrants and Warrant Shares from the
Put Date to the date on which such amount is paid in full.
7.3. Co-Sale Rights. There shall be disclosed to the Holder
--------------
(i) by the Company at least 45 days prior to the consummation of a change of
control as defined in paragraph 7.2.1, (ii) by the Principal Stockholders a
proposed transaction involving the transfer of more than 10% of the Common Stock
Outstanding and (iii) by Xxxx X. Xxxxxx a proposed transaction involving the
transfer of more than 10% of his shares of Common Stock Outstanding, the
identity of the proposed transferee and the terms and conditions of the proposed
transfer in reasonable detail. In the event of such a transaction the Holder
may, subject to the provisions of the Stockholders Agreement, elect to
participate in the transaction by delivering written notice of such election to
the Company or the Principal Stockholders or Xxxx X. Xxxxxx, or as the case may
be, within 15 days after receipt of such disclosure. The Holder may participate
in the transaction by selling to the transferee Warrant Shares or other shares
of Common Stock then held by Holder. Holder shall have the right to sell a
number of shares of Common Stock determined by multiplying in the total number
of shares of Common Stock owned by the Holder (assuming exercise of all Warrants
held by the Holder) by a fraction the numerator of which is the total number of
shares of Common Stock to be acquired by the transferee in the transaction and
the denominator of which shall be the Common Stock Outstanding in the case of
the Company, the total shares owned to be transferred by the Principal
Stockholders transferring shares in the case of the Principal Stockholders and
the total shares owned by Xxxx X. Xxxxxx in his case. Such sale shall be at the
same price per share to be received by the other selling stockholders. In the
event that the transaction takes the form of a sale of assets of the Company,
the Holder shall have the right to receive the same consideration per share, if
any, received by other holders of Common Stock in connection with such
transaction. This paragraph shall not apply to transfers among Principal
Stockholders or transfers by a Principal Stockholder or Xxxx X. Xxxxxx to a
member or members of their immediate families or to a trust for the account of
the transferor or a member or members of the transferor's immediate family.
7.4. Bring-Along Provisions. If the Principal Stockholders
----------------------
together with other stockholders (the "selling stockholders") shall propose to
transfer shares of Common Stock constituting more than 50% of the Common Stock
Outstanding, then such selling stockholders shall have the right, upon giving
written notice thereof to the Holder at least 30 days prior to such sale, to
require the Holder to participate in such sale as provided below. The selling
stockholders may require the Holder to include in such sale that number of
Warrant Shares (or Warrants) owned by the Holder which is determined by
multiplying the total number of shares of Common Stock owned by the Holder
(assuming exercise of all Warrants held by the Holder) by a fraction, the
numerator of which is the number of shares of Common Stock proposed to be
transferred
15
by the selling stockholders and the denominator of which is the aggregate number
of shares of Common Stock held by the selling stockholders (assuming exercise of
each outstanding Option held by any of the selling stockholders). Any such
participation by the Holder shall be at the same price per share applicable to
the sale of the Common Stock by the selling stockholders and otherwise shall be
on the same terms and conditions (including any with respect to deferral of
payments in whole or in part) as are applicable to the selling stockholders.
Notwithstanding anything to the contrary contained herein, no Principal
Stockholder shall have a bring-along right with respect to any of the following
transfers of Common Stock:
(1) to an Affiliate of a Principal Stockholder or to any
officer, employee or director of such stockholder;
(2) to the Company or an Affiliate of the Company; or
(3) in a bona-fide public offering.
8. Miscellaneous.
-------------
8.1. Successors and Assigns. This Agreement shall bind and inure to
----------------------
the benefit of the parties to this Agreement and their respective successors and
assigns.
8.2. Consents and Waivers. No consent or waiver under this Agreement
--------------------
shall be effective unless in writing. No waiver of any breach or default shall
be deemed a waiver of any breach or default thereafter occurring.
8.3. Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of Delaware.
8.4. Notices. All notices required hereunder shall be by facsimile,
-------
personal delivery or first class mail, postage prepaid, to the addresses set
forth on the signature page of this Agreement, or to such other addresses as the
parties may specify from time to time in writing. If by facsimile notice shall
also be confirmed by personal delivery or first class mail, postage prepaid.
8.5. Headings. Article and paragraph headings are for reference only
--------
and shall not affect the interpretation or meaning of any provisions of this
Agreement.
8.6. Severability. The illegality or unenforceability of any
------------
provision of this Agreement or any instrument or agreement under this Agreement
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
under this Agreement.
16
8.7. Lost Certificates. If the Holder shall lose a Warrant
-----------------
Certificate or stock certificate representing Warrant Shares, Holder shall be
entitled to receive from the Company replacement certificates upon receipt from
the Holder of an indemnity with respect to the lost certificates and without
bond from the Holder.
8.8. Counterparts. This Agreement may be executed in as many
------------
counterparts as may be deemed necessary or convenient, and by the parties to
this Agreement on separate counterparts each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute but one and
the same agreement.
WACHOVIA BANK, N.A. AEGIS MORTGAGE ACCELERATION CORP.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------------- ------------------------------
Xxxxx Xxxxxx Xxxx X. Xxxxxx, President
Senior Vice President
Address where notices to Lender are Address where notices to Borrower
are to be sent: are to be sent:
000 Xxxxxxxxx Xxxxxx, X.X. Three Embarcadero Center
Xxxxxxx, Xxxxxxx 00000 Suite 2250
Telephone: (000) 000-0000 Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (415) 362
17
Exhibit A
THE WARRANTS REPRESENTED BY THIS WARRANT CERTIFICATE AND THE SHARES PURCHASABLE
UPON EXERCISE OF THE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE ACT, THE RULES AND REGULATIONS PROMULGATED THEREUNDER AND
ANY APPLICABLE STATE SECURITIES LAWS.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE ISSUED PURSUANT TO AND ARE
SUBJECT TO A WARRANT AGREEMENT WHICH FIXES THE RIGHTS AND OBLIGATIONS OF THE
COMPANY AND THE HOLDER OF THESE WARRANTS. A COPY OF THE WARRANT AGREEMENT IS ON
FILE AT THE COMPANY'S PRINCIPAL OFFICE.
AEGIS MORTGAGE ACCELERATION CORP.
COMMON STOCK WARRANT CERTIFICATE
VOID AFTER _________________, 2002 For the Purchase of ____________
Shares of Common Stock
Aegis Mortgage Acceleration Corp., a Delaware corporation (the "Company"),
hereby certifies that, for value received, Wachovia Bank, N.A., or any
registered assigns, is the registered holder (the "Holder") of
________________________ (__________) Warrants (the "Warrants") to purchase
_______________________ shares (the "Shares") of either Class A Common Stock or
Class B Common Stock of the Company ("Common Stock") at the option of the
Holder. Each Warrant entitles the Holder to purchase from the Company one fully
paid and nonassessable share of Common Stock at an initial exercise price (the
"Exercise Price") of $______________________ per share.
The Holder's right to purchase Shares hereunder shall be exercised by
surrender to the Company of this Warrant Certificate, together with an executed
Form of Warrant Subscription (attached hereto), execution by the Holder of the
Stockholders Agreement entered into as of April 30, 1993 by and among the
Company and the stockholders of the Company (the "Stockholders Agreement") and
payment of the aggregate Exercise Price of the Warrants exercised, at the
principal executive office of the Company, upon terms and subject to the
conditions set forth in this Warrant Certificate, and in the Warrant Agreement
dated as of ____________________, 1997 (the "Warrant Agreement") between the
Company and the Holder. The Warrant Agreement is incorporated in this
Warrant Certificate by this reference and must be referred to for a description
of the rights, obligations and duties of the Company and the Holder of the
Warrants issued pursuant to the Warrant Agreement.
If, upon any exercise of Warrants represented by this Warrant Certificate,
the number of Warrants exercised is less than the total number of Warrants
represented by this Warrant Certificate, there shall be issued to the Holder or
the Holder's assignee a new Warrant Certificate representing the number of
Warrants not exercised.
This Warrant Certificate, when surrendered to the Company in accordance
with the terms of the Warrant Agreement, may be exchanged without payment of any
service charge for another Warrant Certificate or Warrant Certificates
representing in the aggregate a like number of Warrants.
Subject to and in accordance with the terms of the Warrant Agreement, any
or all of the Warrants represented by this Warrant Certificate may be
transferred by presentation to the Company accompanied by an executed Form of
Assignment (attached hereto). A new Warrant Certificate representing the number
of Warrants so transferred shall be issued to the transferee, subject to any
limitations provided in the Warrant Agreement, without charge. If the number of
Warrants so transferred is less than the total number of Warrants represented by
this Warrant Certificate, there shall be issued to the transferor a new Warrant
Certificate representing the number of Warrants not transferred.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
signed by the person named below "hereunto duly authorized.
DATED: ________________, 1997 AEGIS MORTGAGE ACCELERATION CORP.
By:______________________________
Xxxx X. Xxxxxx, President
2
EXHIBIT A-1
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and
transfers unto __________________________________, the Warrants represented by
the within Warrant Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint to transfer such
Warrants on the books of the within-named Corporation with full power of
substitution
DATED: ____________________, 19__
Signature ___________________________
EXHIBIT A-2
FORM OF WARRANT SUBSCRIPTION
(To be signed only upon exercise of Warrant.)
TO Aegis Mortgage Acceleration Corp.:
The undersigned, the holder of the Warrants represented by the attached
Warrant Certificate (the "Holder"), hereby irrevocably elects to exercise the
purchase right represented by such Warrants for, and to purchase thereunder,
________________ shares of Common Stock (the "Shares") of Aegis Mortgage
Acceleration Corp. (the "Company") and herewith makes payment, as provided in
the Warrant Agreement, of $_______________ therefor. The Holder hereby requests
that the Company issue shares of Class A Common Stock and/or __________ shares
of Class B Common Stock and requests that the certificate(s) for such Shares be
issued in the name of, and
delivered to:
__________________________________
__________________________________
__________________________________
__________________________________ __________________________________
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant Certificate)
__________________________________
__________________________________
(Address)
Dated: _____________________, 19__
* Insert here the number of Shares called for on the face of the Warrant
Certificate (or, in the case of a partial exercise, the portion thereof as
to which the Warrants are being exercised), in either case without making
any adjustment for additional Shares or any other securities or property or
cash which, pursuant to the adjustment provisions of the Warrant Agreement,
may be deliverable upon exercise.
21
Amendment to Warrant Agreement
This Amendment, which amends the Warrant Agreement ("Agreement") entered into as
of August 25, 1997, between Aegis Mortgage Acceleration Corporation ("Company")
and Wachovia Bank, N.A. ("Holder"), is intended to amend the Agreement to
provide for a fixed number of warrants to purchase stock of Company to be issued
to Holder instead of a formula based upon the amount of loans made by Holder to
Company pursuant to the Credit Agreement between Company and Holder entered into
as of August 25, 1997.
Whereas Company and Holder have agreed to amend the Additional Issuance
provision of the Agreement, the parties hereto agree to amend the Agreement as
follows:
1. Section 2.2 of the Agreement shall be amended to provide for a fixed number
of warrants to purchase shares of Company stock to be issued to Holder upon
expiration of a thirty-day period commencing on the date of execution of
this Amendment. To that end, Section 2.2 shall be amended and restated to
read in its entirety to read as follows:
"2.2 Additional Issuance: Thirty days following the execution of this
Amendment, the Company shall issue to Holder a warrant to purchase 7,940
shares of Class B Common Stock of Company at an exercise price of $.01 per
share."
2. The address listed on the signature page for the Company shall be amended
as follows: Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, Xxxxxxxxxx
00000.
Except as expressly amended by this Amendment, the Agreement shall remain in
full force and effect.
Date September 28, 1998
-------------------
Aegis Mortgage Acceleration Corporation Wachovia Bank, N.A.
By /s/ Xxxx X. Xxxxxx By /s/ Signature Illegible
------------------- ------------------------
Its President Its Senior Vice President
---------- ----------------------
Addendum to Warrant Agreement
This Addendum is intended to supplement the Warrant Agreement ("Agreement")
dated as of August 25, 1997 between Aegis Mortgage Acceleration Corp., a
Delaware Corporation ("Company") and Wachovia Bank, N.A. ("Holder") wherein
Company agreed to grant to Holder warrants to purchase up to three percent of
the outstanding common stock of Company on a fully diluted basis.
The parties hereto acknowledge and agree that, at the time of execution of the
Agreement, the calculation of the final number of warrants to be issued was
uncertain due to two transactions which could further dilute the number of
outstanding shares of the Company and it was agreed that when those two
transactions were completed, Company would issue additional warrants to Holder
to maintain Holder's initial percentage of warrant coverage. At this time, the
parties hereto agree that the two transactions have resulted in Holder being
entitled to receive an additional three thousand seven hundred ninety eight
(3,798) warrants. Holder and Company hereby agree that except as supplemented by
this Addendum, the Agreement shall remain in full force and effect.
Agreed To And Accepted By:
Aegis Mortgage Acceleration Corporation Wachovia Bank, N.A.
By /s/ Xxxx Xxxxxx By
---------------- ------------------------
Its President Its
---------- ------------------------
