EXHIBIT 4
================================================================================
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
XXXXXX XXXXXXX REAL ESTATE FUND III, L.P.,
XXXXXX XXXXXXX REAL ESTATE INVESTORS III, L.P.,
MSP REAL ESTATE FUND, L.P.,
MSREF III SPECIAL FUND, L.P.
AND
BLUEGREEN CORPORATION
DATED AUGUST 14, 1998
================================================================================
TABLE OF CONTENTS
PAGE
----
1. Definitions............................................................... 1
2. Shelf Registration of Resales............................................. 3
3. Demand Registration....................................................... 5
4. Piggyback Registration.................................................... 7
5. Registration of Securities Other than Registrable Securities.............. 9
6. "Market Stand-Off" Agreement.............................................. 9
7. Registration Procedures................................................... 9
8. Registration Expenses.....................................................14
9. Indemnification...........................................................15
10. Rule 144..................................................................17
11. Underwritten Registrations................................................18
12. Miscellaneous.............................................................18
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made and entered
into as of August 14, 1998, by and among Xxxxxx Xxxxxxx Real Estate Fund III,
L.P., a Delaware limited partnership, Xxxxxx Xxxxxxx Real Estate Investors III,
L.P., a Delaware limited partnership, MSP Real Estate Fund, L.P., a Delaware
limited partnership and MSREF III Special Fund, L.P., a Delaware limited
partnership (collectively, "MSREF") and Bluegreen Corporation, a Massachusetts
corporation (the "Company").
RECITALS
WHEREAS, pursuant to the Securities Purchase Agreement dated August 14, 1998,
by and among the Company and MSREF, MSREF has agreed to purchase shares of the
Company's Common Stock in an aggregate amount of up to $50,000,000; and
WHEREAS, to induce MSREF to purchase the shares of Common Stock to be
purchased thereunder, the Company has agreed to provide the registration rights
set forth in this Agreement; and
WHEREAS, the execution and delivery by the Company of this Agreement is a
condition to the obligation of MSREF to purchase any shares of Common Stock as
set forth in Section 5.01 of the Securities Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
17. Definitions. For purposes of this Agreement, the following terms shall
have the respective meanings set forth below:
"Business Day" means any day except a Saturday, Sunday or other day on which
commercial banks in New York, New York or Boca Raton, Florida are authorized or
obligated to close.
"Change of Control" has the meaning in the Securities Purchase Agreement.
"Common Stock" means the Common Stock, par value $.01 per share, of the
Company.
"Demand Notice" has the meaning set forth in Section 3(a) hereto.
"Demand Registration" has the meaning set forth in Section 3(a) hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"indemnified party" has the meaning set forth in Section 8(c) hereto.
"indemnifying party" has the meaning set forth in Section 8(c) hereto.
"Lock-Up Period" means the period commencing on the date hereof and
continuing until the earlier to occur of (i) the second anniversary of the date
hereof, or (ii) six months following the first date on which all shares of
Common Stock to be sold and issued to Purchasers under Sections 2.01 and 2.03 of
the Securities Purchase Agreement shall have been acquired by Purchasers, but
not earlier than the 18th month anniversary of the date hereof.
"Losses" has the meaning set forth in Section 8(a) hereto.
"Notice" has the meaning set forth in Section 3(b)(iii) hereto.
"Permitted Transferee" has the meaning set forth in the Securities Purchase
Agreement.
"Person" means an individual, corporation, partnership, association, trust,
limited liability company, joint venture or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Piggyback Registration" has the meaning set forth in Section 4(a) hereto.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all materials incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Purchasers" means any Person comprising MSREF, any Permitted Transferee, any
bona fide financial institution to which any Purchaser has transferred
(including upon foreclosure of a pledge) shares of Common Stock in accordance
with Section 4.07 of the Securities Purchase Agreement for the purpose of
securing bona fide indebtedness of such Purchaser, and not more than two other
Persons to whom Purchaser or any Permitted Transferee has assigned its rights
hereunder and transferred shares of Common Stock if such Persons are subject to
the volume limitations and manner of sale provisions of Rule 144.
"Registrable Securities" means (i) all the shares of Common Stock beneficially
owned by Purchasers as of the date hereof which have been issued to Purchasers
pursuant to the Securities Purchase Agreement (ii) all shares of Common Stock
which Purchasers have the obligation or right to purchase pursuant to the
Securities Purchase Agreement, and (iii) all of the shares of Common Stock
issued pursuant to the Securities Purchase Agreement and transferred to
Purchasers as permitted by the Securities Purchase Agreement and this Agreement,
until, in the case of any such security, (x) such security is effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering it, (y) such security may be disposed of by
Purchasers in accordance with Rule 144(k) (or any successor provision to such
Rule) under the Securities Act as confirmed in a written opinion of counsel to
the Company addressed to the Purchaser holding such securities, or (z) is sold
or is eligible for sale in the opinion of counsel reasonably satisfactory to the
Company and the Purchasers without registration under the Securities Act and
without any restrictions and in a
2
manner in which all transfer restrictions and restrictive legends with respect
thereto are or may be removed upon consummation of such sale.
"Registration Statement" means any registration statement of the Company under
the Securities Act that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the related Prospectus, all amendments
and supplements to such registration statement (including post-effective
amendments), all exhibits and all materials incorporated by reference or deemed
to be incorporated by reference in such registration statement.
"Registration Suspension Period" has the meaning set forth in Section 2(b)
hereto.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and all rules
and regulations promulgated thereunder, as in effect from time to time.
"Securities Purchase Agreement" means that Securities Purchase Agreement dated
as of August 14, 1998 among MSREF and the Company.
"Special Counsel" has the meaning set forth in Section 6(a) hereto.
"Subsidiary" means, with respect to any corporation (the "parent") any other
Person of which 50% or more of the shares of the voting stock are owned or
controlled, directly or indirectly, by the parent or one or more Subsidiaries of
the parent, or by the parent and one or more Subsidiaries.
"Suspension Notice" has the meaning set forth in Section 2(b) hereto.
"Underwritten Registration" or "Underwritten Offering" means a registration
under the Securities Act in which securities of the Company are sold to an
underwriter or group of underwriters for reoffering to the public.
18. Shelf Registration of Resales.
(a) Obligation to File and Maintain. The Company will use its reasonable best
efforts to file with the SEC and cause to become effective no later than the
expiration of the Lock-Up Period or within 45 days following (i) the occurrence
of a Change of Control or (ii) receipt of a notice from the Company of the
execution by the Company of a definitive agreement with a Person which will
result in a Change of Control, a Registration Statement under the Securities Act
for the offering on a continuous or delayed basis in the future of all of the
Registrable Securities (the "Shelf Registration"). The Shelf Registration shall
be on an appropriate form and the Shelf Registration and any form of prospectus
included therein or prospectus supplement relating thereto shall reflect such
plan of distribution or method of sale as Purchasers may from time to time
notify the Company, including the sale of some or all of the Registrable
Securities in a public offering. The Company shall use its
3
reasonable best efforts to keep the Shelf Registration continuously effective
for the period beginning on the date on which the Shelf Registration is declared
effective and ending on the first date that there are no Registrable Securities
(provided that the Company may terminate the effectiveness of a Shelf
Registration on the fourth anniversary of the date of effectiveness thereof plus
a number of days equal to the number of days in all Registration Suspension
Periods relating to such Shelf Registration). During the period during which the
Shelf Registration is effective, the Company shall supplement or make amendments
to the Shelf Registration, if required by the Securities Act or if reasonably
requested by Purchasers or an underwriter of Registrable Securities, including
to reflect any specific plan of distribution or method of sale, and shall use
its reasonable best efforts to have such supplements and amendments declared
effective, if required, as soon as practicable after filing.
(b) Black-Out Periods of Purchasers. Notwithstanding anything herein to the
contrary, (i) the Company shall have the right, by written notice to Purchasers
(the "Suspension Notice"), exercisable on not more than one occasion during any
one-year period, from time to time, to require Purchasers not to sell under the
Shelf Registration or to suspend the effectiveness thereof during the period
starting with the date 30 days prior to the Company's good faith estimate, as
certified in writing by an executive officer of the Company to Purchasers, of
the proposed date of filing of a Registration Statement or a preliminary
prospectus supplement relating to an existing shelf registration statement, in
either case, pertaining to an Underwritten Offering of equity securities of the
Company for the account of the Company, and ending on the date 90 days following
the effective date of such Registration Statement or the date of filing of such
prospectus supplement, and (ii) the Company shall be entitled to postpone or
suspend (but not for a period exceeding 60 days per transaction) the filing or
effectiveness of a Registration Statement otherwise required to be prepared and
filed by it pursuant to this Section 2 on not more than one occasion during any
12-month period if the Company determines, in its good faith judgment, that such
registration and offering or continued effectiveness would interfere with any
material financing, acquisition, disposition, corporate reorganization or other
material transaction involving the Company or any of its subsidiaries or any
preexisting negotiations, discussions or pending proposal with respect to any
such material transactions or public disclosure thereof would be required prior
to the time such disclosure might otherwise be required, or when the Company is
in possession of material information that it deems advisable not to disclose in
a Registration Statement (either, the "Registration Suspension Period").
(c) Shelf Registrations. A Shelf Registration under this Section 2 shall not
be deemed to have been effected unless such registration becomes effective
pursuant to the Securities Act and is kept effective for a period of at least
four years, provided, however, that no Registration Suspension Periods or
periods during which there is any stop order, injunction or other order of the
SEC or other governmental authority for any reason other than an act or omission
or Purchasers, shall count towards such four-year period.
(d) Notice. The Company shall give Purchasers prompt notice in the event that
the Company has suspended sales of Registrable Securities under Section 2(b).
19. Demand Registration.
(a) Requests for Registration. At any time and from time to time after the
earlier of (i) expiration of the Lock-Up Period, (ii) the occurrence of a Change
of Control or (iii) receipt of a notice from the
4
Company of the execution by the Company of a definitive agreement with a Person
which will result in a Change of Control, each Purchaser shall have the right by
written notice delivered to the Company (a "Demand Notice") to require the
Company to register the number of Registrable Securities requested to be so
registered in accordance with the provisions of the Securities Act (a "Demand
Registration"), but in no event fewer than would result in $10,000,000 of
Registrable Securities being registered or all Registrable Securities owned by
the Purchaser delivering the Demand Notice if it owns less than $10,000,000 of
Registrable Securities; provided, however, that no Purchaser may deliver a
Demand Notice until 120 days after the effective date of the immediately
preceding Demand Registration and no Purchaser may deliver a Demand Notice
within 180 days after the effective date of a registration statement filed by
the Company covering a firm commitment underwritten public offering (provided
that the Purchaser had the right to participate in such offering under Section
4). The number of Demand Registrations pursuant to this Section 3(a) will not
exceed two; provided, however, that in determining the number of Demand
Registrations to which Purchasers are entitled there will be excluded (i) any
Demand Registration that is an Underwritten Registration if the managing
underwriter or underwriters have advised the Purchasers whose Registrable
Securities are being registered in the Demand Registration that the total number
of Registrable Securities requested to be included in the Demand Registration
exceeds by more than 25% the number of Registrable Securities that can be sold
in that offering in accordance with the provisions of this Agreement without
materially and adversely affecting the success of such offering, and (ii) any
Demand Registration that does not become effective or is not maintained
effective for the period required pursuant to Section 3(b), unless in the case
of this clause (ii) the Demand Registration does not become effective after
being filed by the Company solely by reason of the refusal to proceed by the
holders of Registrable Securities unless (A) the refusal to proceed is based
upon the written advice of counsel relating to a matter with respect to the
Company or (B) the Purchasers that requested their Registrable Securities to be
included in the Demand Registration elect to pay all registration and other
expenses in connection with that Demand Registration. The Company shall not be
obligated to effect a Demand Registration (i) within 6 months of the effective
date of a registration pursuant to Section 2 if there is a registration
effective pursuant to Section 2 at the time of the Demand Notice, or (ii) within
120 days of the effective date of a previous Demand Registration pursuant to
this Section 3.
(b) Filing and Effectiveness.
(i) The Company will file a Registration Statement relating to any Demand
Registration within 30 calendar days and will use its reasonable best efforts to
cause the Registration Statement to be declared effective by the SEC within 90
calendar days of the date on which the Company received the related Demand
Notice. Each Demand Notice must specify the number of Registrable Securities to
be registered and the intended methods of distribution of those Registrable
Securities. If Purchaser delivering the Demand Notice specifies one particular
type of Underwritten Offering, the method of distribution will be that type of
Underwritten Offering or a series of that type of Underwritten Offerings during
the period during which the Registration Statement is effective.
(ii) In connection with a Demand Registration pursuant to Section 3(a), the
Company will keep the Registration Statement effective for a period of not less
than 180 days or such shorter period which will terminate when all Registrable
Securities covered by such
5
Registration Statement have been sold. If any Demand Registration is requested
to be effected as a "shelf" registration, the Company will keep the Registration
Statement filed in respect of that Demand Registration effective for a period of
up to one year from the date on which the SEC declares that Registration
Statement effective (subject to extension pursuant to Section 6 hereof) or such
shorter period which will terminate when all Registrable Securities covered by
that Registration Statement have been sold pursuant to that Registration
Statement.
(iii) Within five Business Days after receipt of a Demand Notice, the
Company will serve written notice of its receipt of the Demand Notice (the
"Notice") to the other Purchasers and will, subject to the provisions of Section
2(c), include in that Demand Registration all Registrable Securities with
respect to which the Company receives a written request from any such other
Purchaser for inclusion therein within 15 calendar days after receipt of the
Notice.
(c) Priority on Demand Registration. If any of the Registrable Securities
registered pursuant to a Demand Registration are to be sold in one or more firm
commitment Underwritten Offerings, the Company may also provide written notice
to other holders of its equity securities (other than Registrable Securities),
if any, who have piggyback registration rights with respect thereto and will
permit all of those holders who request to be included in the Demand
Registration to include any or all equity securities held by those holders in
that Demand Registration on the same terms and conditions as the Registrable
Securities. Notwithstanding the foregoing, if the managing underwriter or
underwriters of the Underwritten Offering to which that Demand Registration
relates advises the Company and the Purchasers whose Registrable Securities are
being registered that the total amount of Registrable Securities and securities
that the other equity security holders intend to include in that Demand
Registration is in the aggregate in excess of that number of securities which
can be sold in such underwritten offering without materially and adversely
affecting the success of such offering, then the Company will include in such
registration (i) first, up to the full number of the Registrable Securities
requested to be registered pursuant to Section 3(a) hereof to the extent such
Registrable Securities requested to be registered do not exceed the largest
number of securities which can be sold in such underwritten offering without
materially and adversely affecting such offering and (ii) second, to the extent
that the number of Registrable Securities requested to be registered pursuant to
Section 3(a) hereof is less than the number of securities which can be sold in
such underwritten offering without materially and adversely affecting such
offering, such number of shares of equity securities the Company requests to be
included in such registration and such number of other securities proposed to be
sold by any other Person (the securities to be included in such underwritten
offering by the Company and such other Persons to be allocated as agreed upon by
the Company and such other Persons) which, in the opinion of the managing
underwriter or underwriters, can be sold without materially and adversely
affecting such underwritten offering.
(d) Black-Out Periods of Purchaser. Subject to the conditions of this Section
3(d), (i) the Company shall have the right, exercisable on not more than one
occasion during any one-year period, from time to time to require Purchasers not
to sell under the registration requested pursuant to this Section 3 or to
suspend the effectiveness thereof during the period starting with the date 30
days prior to the Company's good faith estimate, as certified in writing by an
executive officer of the Company to Purchasers, of the proposed date of filing
of a Registration Statement or a preliminary prospectus supplement relating to
an existing registration statement, in either case, pertaining to an
Underwritten
6
Offering of equity securities of the Company for the account of the Company, and
ending on the date 90 days following the effective date of such registration
statement or the date of filing of such prospectus supplement, and (ii) the
Company shall be entitled to postpone or suspend (but not for a period exceeding
60 days per transaction) the filing or effectiveness of a Registration Statement
otherwise required to be prepared and filed by it pursuant to this Section 3 on
not more than one occasion during any 12-month period if the Company determines,
in its good faith judgment, that such registration and offering or continued
effectiveness would interfere with any material financing, acquisition,
disposition, corporate reorganization or other material transaction involving
the Company or any of its subsidiaries or preexisting negotiations, discussions
or pending proposal with respect to any such material transaction or public
disclosure thereof would be required prior to the time such disclosure might
otherwise be required, or when the Company is in possession of material
information that it deems advisable not to disclose in a registration statement.
20. Piggyback Registration.
(a) Right to Piggyback. If at any time after the earlier of (i) expiration of
the Lock-Up Period, (ii) the occurrence of a Change of Control or (iii) receipt
of a notice from the Company of the execution by the Company of a definitive
agreement with a Person which will result in a Change of Control, the Company
proposes to file a Registration Statement under the Securities Act with respect
to an offering of any class of equity securities (other than a registration
statement (i) on Form X-0, X-0 or any successor form thereto or (ii) filed
solely in connection with an offering made solely pursuant to employee benefit
plans of the Company or in connection with an acquisition of any Person),
whether or not for its own account, then the Company will give written notice of
the proposed filing to the Purchasers as soon as practicable but in any event at
least 30 calendar days before the anticipated filing date of such Registration
Statement, which such notice will offer to Purchasers the opportunity to
register such amount of Registrable Securities as each Purchaser may request (a
"Piggyback Registration"). Subject to Section 4(b), the Company will include in
each Piggyback Registration all Registrable Securities with respect to which the
Company has received from any Purchaser written requests for inclusion in that
Piggyback Registration within 15 days of the giving of such notice. Purchasers
will be permitted to withdraw all or part of the Registrable Securities from a
Piggyback Registration at any time prior to the effective date of the Piggyback
Registration. The Company may at any time terminate a Piggyback Registration in
its sole discretion without liability, provided that the offering to which such
Piggyback Registration relates shall be terminated in its entirety.
(b) Priority on Piggyback Registrations. The Company will cause the managing
underwriter or underwriters of a proposed Underwritten Offering to permit the
Purchasers that requested their Registrable Securities to be included in the
Piggyback Registration for such offering to include therein all Registrable
Securities requested to be so included in the Piggyback Registration on the same
terms and conditions as any similar securities, if any, of the Company included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of the offering deliver an opinion to the Company and Purchasers to
the effect that the total amount of securities which Purchasers, the Company and
any other Persons having rights to participate in that registration propose to
include in the Underwritten Offering exceeds the number of securities that can
be sold in such offering without materially and adversely affecting such
offering, then:
7
(i) if the registration is a primary registration on behalf of the
Company, the Company will include therein (x) first, up to the full amount of
securities the Company proposes to sell that, in the opinion of the managing
underwriter or underwriters, can be sold in such offering without materially and
adversely affecting such offering, (y) second, to the extent that the number of
securities to be offered by the Company is less than the number of securities
which can be sold in such offering without materially and adversely affecting
such offering, such number of shares of Registrable Securities requested to be
sold for the account of Purchasers which can be sold in such offering without
materially and adversely affecting such offering (provided that if the number of
such Registrable Securities requested to be registered exceeds the number of
securities which can be sold in such offering without materially and adversely
affecting such offering, then the number of Registrable Securities to be
included in such registration shall be allocated pro rata among all Purchasers
requesting inclusion in such offering on the basis of the relative number of
Registrable Securities requested by each such Purchaser), and (z) third, to the
extent that the number of securities to be offered by the Company and the number
of Registrable Securities requested to be included in such registration pursuant
to Section 4(a) hereof are, in the aggregate, less than the number of securities
which can be sold in such offering without materially and adversely affecting
such offering, such number of securities proposed to be sold for the account of
any other Person (other than the Company and Purchasers) which can be sold in
such offering without materially and adversely affecting such offering (provided
that if the number of such securities of such other Persons requested to be
registered exceeds the number of securities which can be sold in such offering
without materially and adversely affecting such offering, then the number of
securities of such other Persons shall be allocated pro rata among all such
Persons on the basis of the relative number of securities each such Person has
requested to be included in such registration); and
(ii) if the registration is an underwritten secondary registration on
behalf of holders of securities of the Company other than Purchasers, the
Company will include therein: (x) first, up to the full number of securities of
the Persons exercising "demand" registration rights that, in the opinion of the
managing underwriter or underwriters, can be sold in such offering without
materially and adversely affecting such offering, (y) second, to the extent the
number of securities to be offered by such Persons exercising "demand"
registration rights is less than the number of securities which can be sold in
such offering without materially and adversely affecting such offering, such
number of shares of Registrable Securities requested to be sold for the account
of Purchasers which can be sold in such offering without materially and
adversely affecting such offering (provided that if the number of such
Registrable Securities requested to be registered exceeds the number of
securities which can be sold in such offering without materially and adversely
affecting such offering, then the number of Registrable Securities to be
included in such registration shall be allocated pro rata among all Purchasers
requesting inclusion in such offering on the basis of the relative number of
Registrable Securities requested by each such Purchaser), and (z) third, to the
extent the number of securities to be offered by such Persons exercising
"demand" registration rights and the number of Registrable Securities requested
to be included in such offering pursuant to Section 4(a) hereof are, in the
aggregate, less than the number of securities which can be sold in such offering
without materially and adversely affecting such offering, such number of
securities proposed to be sold for the account of any other Person (other than
such Persons exercising "demand" rights and Purchasers) which can be resold
without materially and adversely affecting such offering (provided that if the
number of such securities of such other Persons requested to be registered
exceeds the number of securities which can be sold in such offering without
materially and adversely
8
affecting such offering, then the number of securities of such other Persons
shall be allocated pro rata among all such Persons on the basis of the relative
number of securities each such Person has requested to be included in such
registration).
21. Registration of Securities Other than Registrable Securities. Without the
prior written consent of Purchasers, the Company will not grant to any Person
the right to request the Company to register any securities of the Company under
the Securities Act unless the rights so granted are subject to the prior rights
of Purchasers set forth herein and, if exercised, would not otherwise conflict
or be inconsistent in any way with the provisions of this Agreement. The Company
agrees that it will not grant to any Person any rights which obligate the
Company to give such Person "most favored nations" benefits with respect to the
registration of any shares of equity securities of the Company or any securities
convertible or exercisable into shares of any equity securities of the Company.
22. "Market Stand-Off" Agreement. Purchasers will not, to the extent
requested (by timely written notice) by the managing underwriter or underwriters
for any Underwritten Offering of the Company's capital stock (or any securities
issued by the Company that are exercisable to purchase, convertible into or
exchangeable for shares of capital stock of the Company), sell for Purchaser's
account, or otherwise transfer or dispose of any Registrable Securities (except
to the extent permitted in the Underwritten Offering) without the prior written
consent of the Company and/or managing underwriter or underwriters for such
period of time (not to exceed 90 days) from the effective date of the
registration statement relating to the Underwritten Offering as the Company
and/or managing underwriter or underwriters may specify. The Company may impose
stop-transfer instructions with respect to the Registrable Securities of
Purchasers until the end of that 90-day period in order to enforce these
restrictions. In no event, however, will Purchasers be required to enter into
more than one such agreement during any period of 12 consecutive months.
23. Registration Procedures. In connection with the Company's registration
obligations pursuant to Sections 2, 3 and 4, the Company will effect those
registrations to permit the sale of the Registrable Securities in accordance
with the intended method or methods of distribution of those Registrable
Securities, and pursuant thereto the Company will as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or Registration
Statements on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by Purchasers in accordance with the intended
method or methods of distribution thereof, and cause each such Registration
Statement to become effective and remain effective as provided herein; provided,
however, that not less than five Business Days before filing a Registration
Statement or Prospectus or any amendments or supplements thereto (excluding
documents that would be incorporated or deemed to be incorporated therein by
reference) the Company will furnish to the Purchasers whose Registrable
Securities are covered by that Registration Statement, counsel for such
Purchasers with respect to such registration ("Special Counsel") and the
managing underwriters, if any, copies of all documents proposed to be filed,
which documents will be subject to review by such Purchasers, the Special
Counsel and underwriters, and the Company will not file any Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
(excluding any documents which, upon filing, would or would be incorporated or
deemed to be incorporated by reference therein) to which the Purchasers whose
Registrable Securities are covered by that Registration Statement, the Special
Counsel or the managing underwriter, if any, may reasonably object on a timely
basis;
9
(b) Prepare and file with the SEC any amendments and post-effective amendments
to each Registration Statement as may be necessary to keep the Registration
Statement continuously effective for the applicable period specified in Sections
2 and 3; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act with respect to the distribution of
all securities covered by the Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in the Registration Statement as so amended or to the
Prospectus as so supplemented;
(c) Notify Purchasers, the Special Counsel and the managing underwriters, if
any, promptly, and (if requested by any of those Persons) confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the Registration Statement or amendment has
become effective, (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, (iii) of the issuance by
the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if at any time the representations and
warranties of the Company contained in any agreement contemplated by Section
6(m) (including any underwriting agreement) cease to be true and correct in any
material respect, (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (vi) of the
occurrence of any event which makes any statement made in the Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or which
requires the making of any changes in a Registration Statement, Prospectus or
document so that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and, in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated or that is necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (vii) of the
Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate;
(d) Use reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment;
(e) If requested by the managing underwriters, if any, or Purchasers whose
Registrable Securities are being registered, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, and Purchasers agree should be included therein
to comply with applicable law and (ii) make all required filings of the
Prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated in
the Prospectus supplement or post-effective
10
amendment; provided, however, that the Company will not be required to take any
actions under this Section 6(e) that are not, in the reasonable opinion of
counsel for the Company, in compliance with applicable law;
(f) Furnish to Purchasers, the Special Counsel and each managing underwriter,
if any, without charge, conformed copies of the Registration Statement and each
post-effective amendment or supplement thereto, including financial statements
(including schedules, all documents incorporated or deemed incorporated therein
by reference and all exhibits) as Purchasers may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by Purchasers;
(g) Deliver to Purchasers, the Special Counsel and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses relating to
those Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as those Persons may reasonably request; and,
subject to the last paragraph of this Section 6, the Company hereby consents to
the use of that Prospectus or each amendment or supplement thereto by Purchasers
and the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by that Prospectus or any amendment or supplement
thereto;
(h) Cooperate with Purchasers and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates will not bear any
restrictive legends; and enable the Registrable Securities to be in such
denominations and registered in such names as the managing underwriters, if any,
may request at least two Business Days prior to any sale of Registrable
Securities to the underwriters;
(i) Use its reasonable best efforts to register or qualify such Registrable
Securities covered by such Registration Statement under the State Securities or
blue sky laws of such jurisdictions as Purchasers and or the underwriters, if
any, may reasonably request, and do any and all other acts and things which may
be reasonably necessary to consummate the disposition in such jurisdictions of
the Registrable Shares of Purchasers, except that the Company shall not be
required to qualify generally to do business, as a foreign corporation in any
jurisdiction where, but for the requirements of this clause (i), it would not be
obligated to be so qualified or consent to general service of process in any
such jurisdiction;
(j) Use its reasonable best efforts to cause the sale of Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities within the
United States as may be necessary to enable the Purchasers or the underwriters,
if any, to consummate the disposition of such Registrable Securities;
(k) Upon the occurrence of any event contemplated by Section 6(c)(vi) or
6(c)(vii) hereof, promptly prepare a supplement or post-effective amendment to
each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the Purchasers of the Registrable Securities
being sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state 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;
11
(l) Use its reasonable best efforts to cause all Registrable Securities
covered by such Registration Statement to be (i) listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed or, if no similar securities issued by the Company are then so listed, on
the New York Stock Exchange or another national securities exchange if the
securities qualify to be so listed or (ii) authorized to be quoted on the Nasdaq
National Market System or the Nasdaq SmallCap Market if the securities qualify
to be so quoted; in each case, if requested by the holders of a majority of the
Registrable Securities covered by such Registration Statement or the managing
underwriters, if any;
(m) In the event of an underwritten offering, enter into such agreements
(including an underwriting agreement in form, scope and substance as is
customary in underwritten offerings) and take all such other actions in
connection therewith as may be requested by the managing underwriters in order
to expedite or facilitate the disposition of the Registrable Securities and, in
such connection, (i) make such representations and warranties to Purchasers
whose Registrable Securities are being registered and the underwriters with
respect to the business of the Company and its Subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and scope as
are customarily made by issuers to underwriters in Underwritten Offerings and
confirm those representations and warranties if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters) addressed to Purchasers and each of the underwriters, if
any, covering the matters customarily covered in opinions requested in
Underwritten Offerings and such other matters as may be reasonably requested by
the managing underwriters; (iii) use its best efforts to obtain "comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other certified public accountants of any
Subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data is, or is required to be, included in
the Registration Statement), addressed to Purchasers and each of the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "comfort" letters in connection with Underwritten
Offerings; and (iv) deliver such documents and certificates as may be reasonably
requested by Purchasers, the Special Counsel and the managing underwriters, if
any, to evidence the continued validity of the representations and warranties of
the Company and its Subsidiaries made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement or similar agreement entered into by the Company. The foregoing
actions will be taken in connection with each closing under such underwriting or
similar agreement as and to the extent required thereunder;
(n) Upon reasonable notice and at reasonable times during normal business
hours, make available for inspection by a representative of Purchasers, any
underwriter participating in any disposition of Registrable Securities and any
attorney or accountant retained by Purchasers or any underwriter, all financial
and other records, pertinent corporate documents and properties of the Company
and its Subsidiaries, and cause the officers, directors and employees of the
Company and its Subsidiaries to supply all information reasonably requested by
any such representative, underwriter, attorney or accountant in connection with
such Registration Statement; provided, however, that any records, information or
documents that are designated by the Company in writing as confidential at the
time of delivery of such records, information or documents will be kept
confidential by those Persons (and such Persons shall agree in writing with the
Company to keep the same confidential) unless (i) those
12
records, information or documents are in the public domain or otherwise publicly
available, (ii) disclosure of those records, information or documents is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, or (iii) disclosure of those records,
information or documents, in the written opinion of counsel to such Person
delivered to the Company, is otherwise required by law (including, without
limitation, pursuant to the requirements of the Securities Act);
(o) Comply with all applicable rules and regulations of the SEC and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 calendar
days after the end of any 12-month period (or 90 calendar days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registrable Securities are sold to underwriters
in a firm commitment or best efforts Underwritten Offering, and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company, after the effective date of a Registration
Statement, which statements shall cover that 12-month period;
(p) Cause its officers and other appropriate employees to participate in any
presentations regarding any Underwritten Offering reasonably requested by
Purchasers or the managing underwriter or underwriters participating in the
disposition of those Registrable Securities, provided that so doing does not
unreasonably interfere with the business of the Company;
(q) Use its reasonable best efforts to take all of the steps necessary or
advisable to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby.
The Company may require Purchasers 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 the Company may exclude
from such registration the Registrable Securities of Purchasers if Purchasers
fail to furnish such information required by Applicable Law within a reasonable
time after receiving such request.
Each Purchaser will be deemed to have agreed by virtue of its acquisition of
Registrable Securities that, upon receipt of any notice from the Company of the
occurrence of any event of the kind described in Section 6(c)(ii), 6(c)(iii),
6(c)(v), 6(c)(vi) or 6(c)(vii), Purchasers will forthwith discontinue
disposition of their respective Registrable Securities covered by the
Registration Statement or Prospectus until Purchaser's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or
until it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus. If the Company gives any such notice, the time
period prescribed in Sections 2 and 3(b) will be extended by the number of days
during the time period from and including the date of the giving of that notice
to and including the date when each Purchaser of Registrable Securities covered
by such Registration Statement shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 6(k) hereof or (y)
the written advice by the Company described above.
13
24. Registration Expenses.
(a) All fees and expenses incident to the performance of or compliance with
this Agreement by the Company will be borne by the Company whether or not any of
the Registration Statements become effective. Those fees and expenses will
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (B) of
compliance with state securities or "blue sky" laws), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing or photocopying any Prospectuses), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company and, in the case of any Underwritten Offering, of the Special Counsel
for the Purchasers whose Registrable Securities are being registered, (v) fees
and disbursements of all independent certified public accountants referred to in
Section 6(m)(iii) (including the expenses of any special audit and "comfort"
letters required by or incident to such performance), (vi) fees and expenses of
any "qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Rule 2720(c) of the National
Association of Securities Dealers, Inc. Conduct Rules, (vii) Securities Act
liability insurance if the Company so desires that insurance, and (viii) fees
and expenses of all other Persons retained by the Company, but excluding
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities. In addition, the Company
will pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which similar securities issued by the Company are then listed and the fees
and expenses of any Person, including special experts, retained by the Company.
(b) In connection with any Demand Registration or Piggyback Registration under
this Agreement, the Company will reimburse the Purchasers whose Registrable
Securities are being registered in such registration for the reasonable fees and
disbursements of not more than one Special Counsel, together with appropriate
local counsel, chosen by the Purchasers whose Registrable Securities are being
registered.
25. Indemnification.
(a) Indemnification by the Company. The Company will, without limitation as
to time, indemnify and hold harmless, to the fullest extent permitted by law,
each Purchaser whose Registrable Securities have been registered pursuant to
this Agreement, the officers, directors, partners, stockholders, and agents and
employees of each of them, each Person who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) any
Purchaser and the officers, directors, partners, stockholders, agents and
employees of any such controlling Person, from and against all losses, claims,
damages, liabilities, costs (including, without limitation, the costs of
investigation and reasonable attorneys' fees and disbursements) and expenses
(collectively, "Losses"), as incurred, caused by, arising out of or based upon
any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make
14
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company will not be liable to
any Purchaser to the extent that any such Losses arise out of or are based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus if either (i) (A) such Purchaser failed to
send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale by such Purchaser of a Registrable Security to
the Person asserting the claim from which such Losses arise and (B) the
Prospectus would have completely corrected such untrue statement or alleged
untrue statement or such omission or alleged omission; (ii) such untrue
statement or alleged untrue statement, omission or alleged omission is
completely corrected in an amendment or supplement to the Prospectus previously
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, and such Purchaser thereafter fails to deliver such
Prospectus as so amended or supplemented prior to or concurrently with the sale
of a Registrable Security to the Person asserting the claim from which such
Losses arise; or (iii) such untrue statement or alleged untrue statement,
omission or alleged omission was contained in any information so furnished in
writing by such Purchaser to the Company expressly for use in such Registration
Statement or Prospectus and was relied upon by the Company in the preparation of
such Registration Statement, Prospectus or preliminary prospectus.
(b) Indemnification by Purchaser of Registrable Securities. In connection
with any Registration Statement in which the Registrable Securities of a
Purchaser are being registered, each Purchaser will furnish to the Company in
writing such information as the Company reasonably requests for use in
connection with any Registration Statement or Prospectus. Each Purchaser agrees
severally, but not jointly, to indemnify and hold harmless, to the fullest
extent permitted by law, the Company, its directors, officers, shareholders,
agents and employees, each Person who controls (within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act) the Company, and the
directors, officers, shareholders, agents or employees of such controlling
Persons, from and against all Losses caused by, arising out of or based upon any
untrue statement of a material fact contained in any Registration Statement,
Prospectus or form of Prospectus or in any amendment or supplement thereto or in
preliminary prospectus or arising out of or based upon any omission or alleged
omission of 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, but only to the extent, that such untrue statement or
omission is contained in any information so furnished in writing by such
Purchaser to the Company expressly for use in such Registration Statement or
Prospectus and was relied upon by the Company in the preparation of such
Registration Statement, Prospectus or preliminary prospectus. In no event will
the liability of any Purchaser under this Section 8(b) be greater in amount than
the dollar amount of the proceeds received by such Purchaser upon the sale of
the Registrable Securities giving rise to the indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding (including
any governmental investigation) shall be instituted involving any Person in
respect of which indemnity may be sought pursuant to this Section 8(c), such
Person (the "indemnified party") will promptly notify the Person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, will retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
will pay the fees and disbursements of such counsel related to such proceeding;
provided that the failure of any indemnified party so to notify the indemnifying
party will
15
not relieve the indemnifying party of its obligations hereunder except to the
extent that the indemnifying party is actually prejudiced by such failure to
notify. In any such proceeding, any indemnified party will have the right to
retain its own counsel, but the fees and expenses of such counsel will be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the indemnifying party shall have failed within in a reasonable period of
time to retain counsel reasonably satisfactory to the indemnified party, or
(iii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that, unless there
exists a conflict among indemnified persons, the indemnifying party will not, in
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all indemnified parties and that all such fees and expenses will be
reimbursed as they are incurred. The indemnifying party will not be liable for
any settlement of any proceeding effected without its prior written consent, but
if settled with such consent or if there shall be a final non-appealable
judgment for the plaintiff for which the indemnified person is entitled to
indemnification pursuant to this Agreement, the indemnifying party agrees to
indemnify the indemnified party from and against any Loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it will be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 60
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party will, without the prior written consent of the indemnified
party, effect any settlement or compromise of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) Contribution. If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or 8(b) in respect of any
Losses or is insufficient to hold harmless the indemnified party (other than
giving effect to the last sentence of Section 8(b)), then each applicable
indemnifying party, in lieu of indemnifying the indemnified party, will
contribute to the amount paid or payable by the indemnified party as a result of
the Losses, in the proportion as is appropriate to reflect the relative fault of
the indemnifying party or indemnifying parties, on the one hand, and the
indemnified party, on the other hand, in connection with the actions, statements
or omissions that resulted in the Losses as well as any other relevant equitable
considerations. The relative fault of the indemnifying party or indemnifying
parties, on the one hand, and the indemnified party, on the other hand, will be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or related to
information supplied by, the indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission and any other equitable
considerations appropriate in the relevant circumstances. The amount paid or
payable by
16
a party as a result of any Losses will be deemed to include any legal or other
fees or expenses incurred by such party in connection with any action or
proceeding. In no event will the obligation of a Purchaser under this Section
8(d) be greater in amount than the dollar amount of the proceeds (net of payment
of all expenses) received by such Purchaser upon the sale of the Registrable
Securities giving rise to the contribution obligation.
(e) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8, in no event shall an
indemnifying party who is a Purchaser be required to contribute any amount in
excess of the dollar amount of the proceeds (net of payment of all expenses)
received by such Purchaser upon the sale of the Registrable Securities giving
rise to the contribution obligation over the amount of any damages which such
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(f) The indemnity, contribution and expense reimbursement obligations of the
Company hereunder will be in addition to any liability the Company may otherwise
have under this Agreement. The provisions of this Section 8 will survive so
long as Registrable Securities remain outstanding, notwithstanding any transfer
of the Registrable Securities by any holder thereof or any termination of this
Agreement.
26. Rule 144. The Company agrees that it will file the reports required to
be filed by it under the Securities Act and the Exchange Act in a timely manner
in accordance with the requirements of the Securities Act and Exchange Act, and
will cooperate with any Purchaser (including, without limitation, by making any
representations as any Purchaser may reasonably request), all to the extent
required from time to time to enable the Purchaser to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemptions provided by Rule 144. Upon the request of any Purchaser, the
Company will deliver to the Purchaser a written statement as to whether it has
complied with such filing requirements. If at any time the Company ceases to be
required to file reports under the Securities Act and the Exchange Act, the
Company will upon request of any Purchaser, make publicly available annual
reports and such other information, documents and other reports of the type
specified in Sections 13 and 15(d) of the Exchange Act.
27. Underwritten Registrations. If any of the Registrable Securities covered
by any Shelf Registration or Demand Registration are to be sold in an
Underwritten Offering, the investment banker or investment bankers and manager
or managers that will manage the offering shall be Xxxxxx Xxxxxxx, Xxxx Xxxxxx &
Co. or a Subsidiary or Affiliate thereof ("MSDW") to the extent required by and
in accordance with Section 4.15 of the Securities Purchase Agreement and if such
provision does not apply, then as the Purchasers whose Registrable Securities
are being registered in such Shelf Registration or Demand Registration shall
select, provided that such investment banker or manager shall be reasonably
satisfactory to the Company. If any Piggyback Registration is an Underwritten
Offering, subject to the Company's agreement set forth in Section 4.15 of the
Securities Purchase Agreement, the Company will have the right to select the
investment banker or investment bankers
17
and managers to administer the offering. Each party hereto agrees that, in
connection with any Underwritten Offering hereunder in which it participates, it
will undertake to offer customary indemnification to the participatory
underwriters.
28. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date hereof,
and will not, on or after the date hereof, enter into any agreement with respect
to its securities which is inconsistent with the rights granted to the holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions of this Agreement may not
be given, unless the Company has obtained the written consent of Purchasers.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
of this Agreement with respect to a matter that relates exclusively to the
rights of a Purchaser whose Registrable Securities are being registered pursuant
to a Registration Statement and that does not directly or indirectly affect the
rights of the other Purchasers may be given only by affected Purchasers;
provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(c) Notices. All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and delivered personally, sent by
overnight courier to the parties or sent by facsimile (providing confirmation of
transmission) at the following addresses or facsimile numbers (or at such other
address or telecopy number for a party as will be specified by like notice):
(i) if to the Company:
Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq. and Xx. Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
with copies to:
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
18
(iii) if to Purchasers:
x/x Xxxxxx Xxxxxxx Xxxx Xxxxxx Xxxx XXX, L.P.
37th Floor
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Mr. Xxxxxxx Xxxxxx and Xx. Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
2300 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
All notices will be deemed to be given only when actually received.
(d) Owner of Registrable Securities. The Company will maintain, or will
cause its registrar and transfer agent to maintain, a stock book with respect to
the Common Stock, in which all transfers of Registrable Securities of which the
Company has received notice will be recorded. The Company may deem and treat the
Person in whose name Registrable Securities are registered in the stock book of
the Company as the owner thereof for all purposes, including, without
limitation, the giving of notices under this Agreement.
(e) Successors and Assigns. This Agreement will inure to the benefit of
and be binding upon the successors and assigns of each of the parties and will
inure to the benefit of each holder of any Registrable Securities. The Company
may not assign its rights or delegate its obligations hereunder and Purchasers
may assign their rights hereunder only to a Permitted Transferee in accordance
with the Securities Purchase Agreement or to the other Persons described in the
definition of "Purchasers" herein.
(f) Counterparts. This Agreement may be executed in one or more
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.
(g) Headings. Article and Section headings in this Agreement are included
herein for convenience of reference only and will not constitute a part of this
Agreement for any other purpose.
(h) Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Massachusetts, without giving effect
to the principles of conflict of laws of that State that would apply the laws of
any other jurisdiction. Each of the parties to this Agreement hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of the courts of the State of New York, and any appellate
court thereof, in any action,
19
suit, or proceeding arising out of or relating to this Agreement and any such
action, suit or proceeding will be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue
therein). Process in any such action, suit or proceeding may be served on any
party anywhere in the world, whether within or without the jurisdiction of any
such court. Without limiting the foregoing, each party agrees that service of
process on such party as provided in Section 12(c) shall be deemed effective
service of process on such party.
(i) Entire Agreement. This Agreement constitutes the entire agreement, and
supersedes all prior agreements and undertakings, both written and oral, between
the parties, with respect to the subject matter of this Agreement.
(j) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, will be entitled
to recover reasonable attorneys' fees and related disbursements and expenses in
addition to any other available remedy.
(k) Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction will, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision will be
interpreted to be only so broad as is enforceable.
(l) Exculpation. Notwithstanding any provision herein to the contrary, the
liability of each Purchaser shall be limited to the assets of such Purchaser and
no partner, shareholder, officer, director, employee or agent of Purchaser shall
have any personal liability hereunder.
[Signature Page Follows]
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
BLUEGREEN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
XXXXXX XXXXXXX REAL ESTATE FUND III, L.P.
By: MSREF III, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX REAL ESTATE INVESTORS III, L.P.
By: MSREF III, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
MSP REAL ESTATE FUND, L.P.
By: MSREF III, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
21
MSREF III SPECIAL FUND, L.P.
By: MSREF III, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
22