SECOND AMENDMENT TO RIGHTS AGREEMENT
Exhibit 99.4
SECOND AMENDMENT TO RIGHTS AGREEMENT
Second Amendment (this “Amendment”) dated as of May 21, 2007 to the Rights Agreement,
dated as of July 27, 2006, between Bluegreen Corporation, a Massachusetts corporation (the
“Company”), and Mellon Investor Services LLC, a New Jersey limited liability company, as
rights agent (the “Rights Agent”), as amended on October 16, 2006 (as so amended, the
“Agreement”). Capitalized terms used but not defined herein shall have the meanings set
forth in the Agreement.
WHEREAS, the parties hereto entered into the Agreement, pursuant to which the Rights Agent
agreed to act as agent with respect to the Rights, whose privileges and obligations were set forth
in the Agreement;
WHEREAS, the parties desire to amend the Agreement, as further set forth herein; and
WHEREAS, pursuant to Section 27 of the Agreement, the Agreement may be amended by the Company
without the approval of any holders of Right Certificates by a writing signed by the Company and
the Rights Agent.
Accordingly, in consideration of the premises and the mutual agreements herein set forth, the
parties hereby agree as follows:
Section 1. Acquiring Persons. Section 1(a) of the Agreement shall be replaced in its
entirety with the following text:
“Acquiring Person” shall mean any Person (as such term is hereinafter
defined) who or which, together with all Affiliates (as such term is hereinafter
defined) and Associates (as such term is hereinafter defined) of such Person, shall
be the
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Beneficial Owner (as such term is hereinafter defined) of 10% or more of the Common
Shares (as such term is hereinafter defined) of the Company (as such term is
hereinafter defined) then outstanding, but shall not include (1) the Company, (2)
any Subsidiary (as such term is hereinafter defined) of the Company, (3) any
employee benefit plan of the Company or of any Subsidiary of the Company, or any
entity holding Common Shares for or pursuant to the terms of any such plan or (4)
Xxxxxx Corporation, a Florida corporation, or any Affiliate of Xxxxxx Corporation by
virtue of its Affiliation therewith, or any of their respective successors or
assigns (“Xxxxxx”). Notwithstanding the foregoing, no Person shall become an
“Acquiring Person” as the result of an acquisition of Common Shares by the Company
that, by reducing the number of Common Shares of the Company outstanding, increases
the proportionate number of Common Shares of the Company beneficially owned by such
Person to 10% or more of the Common Shares of the Company then outstanding;
provided, however, that, if a Person shall become the Beneficial Owner of 10% or
more of the Common Shares of the Company then outstanding by reason of share
purchases by the Company and shall, after such share purchases by the Company,
become the Beneficial Owner of any additional Common Shares of the Company, then
such Person shall be deemed to be an “Acquiring Person.” Notwithstanding the
foregoing, if the Board of Directors determines in good faith that a Person who
would otherwise be an “Acquiring Person,” as defined pursuant to the foregoing
provisions of this paragraph (a), (i) has become such inadvertently or (ii) has
become such as the result of contractual obligations that are or purport to be
legally binding entered into prior to, and not materially amended or modified after,
the date of this Agreement and has not acquired 1% or more of the Common Shares of
the Company then outstanding by means other than such contractual obligations since
the date of this Agreement, and in either of case (i) or (ii), such Person divests
as promptly as practicable (but in the case of clause (ii), in no event later than
the date 60 calendar days following the date of the acquisition of beneficial
ownership that would otherwise cause such Person to be an Acquiring Person (the
“Divestiture Deadline”)) a sufficient number of Common Shares so that such
Person would no longer be an “Acquiring Person,” as defined pursuant to the
foregoing provisions of this paragraph (a), then such Person (as such term is
hereinafter defined) shall not be deemed to be an “Acquiring Person” for any
purposes of this Agreement. Pursuant to the Stipulation and Order, dated as of
October 16, 2006, among Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx Revocable Trust, and
Central Florida Investments (together, the “Xxxxxx Shareholders”), the
Company and its directors, and filed with the United States District Court for the
Southern District of Florida on October 16, 2006, as amended on May 21, 2007 (as so
amended, the “Stipulation”), the Divestiture Deadline shall be extended to
(x) October 16, 2007, with respect to the sale (after October 16, 2006) of 1,112,000
Common Shares of the Company beneficially owned by the Xxxxxx Shareholders, (y)
October 16, 2008, with respect to the sale (after October 16, 2007) of 4,260,198
Common Shares of the Company beneficially owned by the Xxxxxx Shareholders, and (z)
October 16, 2009, with respect to the sale (after October 16, 2008) of the balance
of any and all Common Shares of the Company beneficially
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owned by the Xxxxxx Shareholders; provided, that if, prior to October 16, 2009, any
of the Xxxxxx Shareholders breaches any provision of the Stipulation or fails to
perform its obligations thereunder, the Divestiture Deadline shall be the date that
the Board of Directors of the Company determines that such breach or failure to
perform has occurred. For the avoidance of doubt, if any Person may avoid being an
Acquiring Person by divesting Common Shares as described above, then such Person
shall not be considered to become an Acquiring Person until (I) in the case of
clause (i) above, the date that the Board of Directors determines in good faith that
such divestiture has not occurred as promptly as practicable or (II) in the case of
clause (ii) above, the expiration of the Divestiture Deadline.
Section 2. Reduction of Ownership Threshold. Each reference to “15%” in Section 3(a)
of the Agreement is hereby replaced with “10%”.
Section 3. Further Amendments of the Ownership Threshold. The second sentence of
Section 27 of the Agreement is hereby replaced in its entirety with the following text:
Without limiting the foregoing, the Company may, by notice to the Rights Agent at
any time and from time to time prior to such time as any Person becomes an Acquiring
Person, amend this Agreement to raise the thresholds set forth in Section 1(a) and
3(a) hereof above 10% (the “Amended Threshold”).
Section 4. Governing Law. This Amendment shall be deemed to be a contract made under
the laws of the Commonwealth of Massachusetts and for all purposes shall be governed by and
construed in accordance with the laws of such Commonwealth applicable to contracts to be made and
performed entirely within such Commonwealth, provided, however, that all provisions regarding the
rights, duties and obligations of the Rights Agent shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed entirely
within such State.
Section 5. Effect of Amendment. Except as expressly amended hereby, the Agreement
shall remain unchanged, and the Agreement as amended hereby shall be in full force and effect.
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Section 6. Counterparts. This Amendment may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
Section 7. Descriptive Headings. Descriptive headings of the several Sections of this
Amendment are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and attested,
all as of the day and year first above written.
Attest:
|
BLUEGREEN CORPORATION | |
By /s/ Xxxxx Xxxxxx
|
By /s/ Xxxx X. Xxxxxxx, Xx. | |
Name: Xxxxx Xxxxxx
|
Name: Xxxx X. Xxxxxxx, Xx. | |
Title:
Executive Assistant to President & CEO
|
Title: President and Chief Executive Officer | |
Attest:
|
MELLON INVESTOR SERVICES LLC | |
By
/s/ Xxxxxx Xxxxxxxx
|
By /s/ Xxxx Xxx | |
Name:
Xxxxxx Xxxxxxxx
|
Name: Xxxx Xxx | |
Title:
Client Relationship Executive
|
Title: Client Relationship Executive |
[Signature Page to Second Amendment to Rights Agreement]
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