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Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
September 15, 1997 between Cityscape Financial Corp., a Delaware corporation
("Cityscape"), and each person executing a counterpart of the signature page of
this Agreement (each individually an "Investor" and collectively the
"Investors").
W I T N E S S E T H:
WHEREAS, pursuant to the Securities Purchase Agreement by and between
Cityscape and the Investors (the "Securities Purchase Agreement"), Cityscape has
agreed to sell and issue to the Investors, and the Investors have agreed to
purchase from Cityscape, up to an aggregate of 5,000 shares, par value $0.01 per
share of Cityscape's 6% Convertible Preferred Stock, Series B (the "Series B
Preferred Stock") on the terms and conditions set forth therein and five-year
warrants issued as of the date hereof exercisable from time to time from the
date of issuance (the "Warrants"), for the purchase of up to 500,000 shares of
Common Stock, par value $0.01 per share of Cityscape (the "Common Stock"), at a
price specified in such Warrants (the shares of Common Stock issuable upon the
exercise of Warrants are hereinafter called the "Warrant Shares");
WHEREAS, the Investors may convert their Series B Preferred Stock into
shares of Common Stock at a conversion price to be calculated pursuant to and
upon such terms as are provided in the Certificate of Designations (the
"Certificate of Designations") of the Series B Preferred Stock; and
WHEREAS, pursuant to the terms of, and in partial consideration for,
the Investors' agreement to enter into the Securities Purchase Agreement,
Cityscape has agreed to provide the holders of Series B Preferred Stock with
certain registration rights with respect to the shares of Common Stock to be
issued upon conversion of the Series B Preferred Stock (such shares of Common
Stock together with the Warrant Shares are hereinafter referred to as the
"Common Shares") and certain other rights and remedies with respect to the
Series B Preferred Stock as set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the
Securities Purchase Agreement and this Agreement, Cityscape and the Investors
agree as follows:
1. Certain Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed thereto in the Securities Purchase
Agreement or the Certificate of Designations. As used in this Agreement, the
following terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
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"Holder" and "Holders" shall include an Investor or the Investors for
so long as they own any Registrable Securities, respectively, and any assignee
or transferee of Registrable Securities to whom the registration rights
conferred by this Agreement have been transferred in compliance with this
Agreement.
"Closing" and "Closing Date" shall have the meanings ascribed to such
terms in the Securities Purchase Agreement.
"Registrable Securities" shall mean: (i) the Common Shares issued to
each Holder or its permitted transferee or designee upon conversion of the
Series B Preferred Stock or exercise of the Warrants or upon any stock split,
stock dividend, recapitalization or similar event with respect to such Common
Shares; (ii) any securities issued or issuable to each Holder upon the exchange
or conversion of any Series B Preferred Stock, Warrants or Common Shares; and
(iii) any other security of Cityscape issued as a dividend or other distribution
with respect to, in exchange of or in replacement of the securities listed in
(i) and (ii) above, until in the case of any such securities (a) a registration
statement under the Securities Act covering the offering of such Registrable
Securities has been declared effective by the Commission and such Registrable
Securities have been disposed of pursuant to such effective registration
statement, (b) such Registrable Securities are sold under circumstances in which
all of the applicable conditions of Rule 144 (or any similar provision then in
force) under the Securities Act ("Rule 144") are met, (c) such Registrable
Securities have been otherwise transferred and Cityscape has delivered a new
certificate or other evidence of ownership for such securities not bearing a
restrictive legend, or (d) such time as, such Registrable Securities may be sold
without any time, volume or manner limitation pursuant to Rule 144(k) (or any
similar provision then in effect) under the Securities Act.
The terms "register," registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses to be incurred by
Cityscape in connection with each Holder's registration rights under this
Agreement, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for Cityscape, blue sky
fees and expenses, reasonable fees and disbursements of counsel to Holders
(using a single counsel selected by a majority in interest of the Holders) for a
"due diligence" examination of Cityscape and review of the Registration
Statement and related documents, and the expense of any special audits incident
to or required by any such registration (but excluding the compensation of
regular employees of Cityscape, which shall be paid in any event by Cityscape).
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for Holders not included with "Registration Expenses."
"Registration Statement" shall have the meaning set forth in Section
2(a) herein.
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"Regulation D" shall mean regulation D as promulgated pursuant to the
Securities Act, and as subsequently amended.
"Securities Act" or "Act" shall mean the Securities Act of 1933, as
amended.
2. Registration Requirements. Cityscape shall use its diligent best
efforts to effect the registration of the Registrable Securities (including
without limitation the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act) as would permit or facilitate the sale or distribution
of all the Registrable Securities in the manner (including manner of sale) and
in all states reasonably requested by the Holder. Such best efforts by Cityscape
shall include the following:
(a) Cityscape shall, as expeditiously as reasonably practicable after
the Closing Date:
(i) Prepare and file within 30 days of the Closing Date with the
Commission pursuant to Rule 415 under the Securities Act a registration
statement on Form S-3 under the Securities Act (or in the event that Cityscape
is ineligible to use such form, such other form as Cityscape is eligible to use
under the Securities Act) covering the Registrable Securities ("Registration
Statement"). Thereafter, Cityscape shall use its best efforts to cause such
Registration Statement and other filings to be declared effective prior to 120
days following the Closing Date. Cityscape shall provide Holders reasonable
opportunity to review any such Registration Statement or amendment or supplement
thereto prior to filing.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to a Registration Statement as may be necessary to
keep such Registration Statement effective for so long as there are any
Registrable Securities; cause the related prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act applicable to it with respect to the disposition of all
Registrable Securities covered by such Registration Statement for so long as
there are any Registrable Securities in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement or
supplement to such prospectus.
(iii) Furnish to each Holder such numbers of copies of a current
prospectus conforming with the requirements of the Act, copies of the
Registration Statement, any amendment or supplement thereto and any documents
incorporated by reference therein and such other documents as such Holder may
reasonably require in order to facilitate the disposition of Registrable
Securities owned by such Holder.
(iv) Use its best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or "Blue sky"
laws of such jurisdictions as shall be reasonably requested by each Holder and
keep each such registration or qualification effective, including through new
filings or amendments or renewals, for so long as there are any Registrable
Securities and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration
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Statement; provided that Cityscape shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(v) For so long as there are any Registrable Securities,
notify each Holder immediately, and confirm such notice in writing, (A) 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 same has become effective, (B) of any request by the
Commission for amendments or supplements to a Registration Statement or related
prospectus or for additional information, (C) of the receipt by Cityscape of any
notification with respect to the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (D) of Cityscape's
reasonable determination that a post-effective amendment to a Registration
Statement would be appropriate or that there exist circumstances not yet
disclosed to the public which make further sales under such Registration
Statement inadvisable pending such disclosure and post-effective amendment.
(vi) Notify each Holder immediately, and confirm such
notice in writing of the happening of any event as a result of which the
prospectus (including any supplements thereto or thereof) included in such
Registration Statement, as then in effect, contains any untrue statement of
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein (in the case of the prospectus or
any preliminary prospectus, in light of the circumstances under which they were
made) not misleading, and use its best efforts to promptly update and/or correct
such prospectus.
(vii) Notify each Holder immediately, and confirm such
notice in writing of the issuance by the Commission or any state securities
commission or agency of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose.
Cityscape shall use its 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 of any of the Registrable Securities for sale in
any jurisdiction, at the earliest possible moment.
(viii) Permit legal counsel to each Holder to review the
Registration Statement and all amendments and supplements thereto within a
reasonable period of time prior to each filing, and shall not file any document
in a form to which such counsel reasonably objects.
(ix) Cause all Registrable Securities that are shares of
Common Stock covered by such Registration Statement to be listed, by the date of
the first sale of Registrable Securities pursuant to such Registration
Statement, with the principal securities exchange(s) and/or markets on which the
Common Stock is then listed and prepare and file any required filings with the
National Association of Securities Dealers, Inc. or any exchange or market where
the Common Shares are traded.
(x) Take all steps necessary to enable Holders to avail
themselves of the prospectus delivery mechanism set forth in Rule 153 (or
successor thereto) under the Act, if available.
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(b) If the Holder(s) intend(s) to distribute the Registrable Securities
by means of an underwriting, the Holder(s) shall so advise Cityscape. Any such
underwriting may only be administered by investment bankers reasonably
satisfactory to Cityscape. Cityscape shall only be obligated to permit one
underwritten offering, which offering shall be determined by a 66-2/3%
majority-in-interest of the Holders.
(c) Cityscape shall enter into such customary agreements for an
underwritten secondary offering (including a customary underwriting agreement
with the underwriter or underwriters), and take all such other actions
reasonably requested by the Holders in connection therewith in order to expedite
or facilitate the disposition of such Registrable Securities and in such
connection:
(i) make such representations and warranties to the Holders and
the underwriter or underwriters in form, substance and scope as are customarily
made by issuers to underwriters in secondary offerings;
(ii) cause to be delivered to the sellers of Registrable
Securities and the underwriter or underwriters opinions of independent counsel
to Cityscape, on and dated the date of delivery of any Registrable Securities
sold pursuant to the Registration Statement, which counsel and opinion (in form,
scope and substance) shall be reasonably satisfactory to the Holders and the
underwriter(s) and their counsel and covering, without limitation, such matters
as the due authorization and issuance of the securities being registered and
compliance with securities laws by Cityscape in connection with the
authorization, issuance and registration thereof and other matters that are
customarily given to underwriters in underwritten offerings, addressed to the
Holders and each underwriter;
(iii) cause to be delivered, immediately prior to the time of
delivery of any Registrable Securities sold pursuant to the Registration
Statement, a "comfort" letter from Cityscape's independent certified public
accountants addressed to the Holders and each underwriter, stating that such
accountants are independent public accountants within the meaning of the
Securities Act and the applicable published rules and regulations thereunder,
and otherwise in customary form and covering such financial and accounting
matters as are customarily covered by letters of the independent certified
public accountants delivered in connection with secondary offerings;
(iv) any underwriting agreement entered into shall include
customary indemnification and contribution provisions to and from the Company
and the underwriters;
(v) deliver such documents and certificates as may be reasonably
requested by the Holders of the Registrable Securities being sold or the
managing underwriter or underwriters, if any, to evidence compliance with clause
(i) above and with any customary conditions contained in the underwriting
agreement, if any.
(d) Cityscape shall make available for inspection by the Holders,
representative(s) of all the Holders together, any underwriter participating in
any disposition pursuant to a Registration Statement, and any attorney or
accountant retained by any Holder or underwriter all
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financial and other records customary for purposes of the Holders' due diligence
examination of Cityscape and review of any Registration Statement, all SEC
Documents (as defined in the Securities Purchase Agreement) filed subsequent to
the Closing, pertinent corporate documents and properties of Cityscape, and
cause Cityscape's officers, directors and employees to supply all information
reasonably requested by any such representatives, underwriter, attorney or
accountant in connection with such Registration Statement, provided that such
parties agree to keep such information confidential.
(e) Cityscape may suspend the use of any prospectus used in connection
with the Registration Statement only (i) in the event, and for such period of
time as, such a suspension is required by the rules and regulations of the
Commission, or (ii) as otherwise provided in the Certificate of Designations.
Cityscape will use its best efforts to cause such suspension to terminate at the
earliest possible date.
(f) In the event Cityscape is required to file an additional
registration statement with respect to newly authorized and/or reserved shares
of Common Stock (the "New Shares") in order to comply with its obligations under
the Series B Preferred Stock or the Warrant, Cityscape shall file an additional
registration statement within five (5) business days of any shareholders meeting
authorizing the New Shares and shall use its best efforts to cause such
registration statement to become effective within sixty (60) days of such
shareholders meeting. If the Holders become entitled, pursuant to an event
described in clause (iii) of the definition of Registrable Securities, to
receive any securities in respect of Registrable Securities that were already
included in a registration statement, subsequent to the date such registration
statement is declared effective, and Cityscape is unable under the securities
laws to add such securities to the then effective registration statement,
Cityscape shall promptly file, in accordance with the procedures set forth
herein, an additional registration statement with respect to such newly
Registrable Securities. Cityscape shall use its best efforts to (i) cause any
such additional registration statement, when filed, to become effective under
the Securities Act, and (ii) keep such additional registration statement
effective during the period described in Section 5 below. All registration
rights set forth in this Agreement and the Securities Purchase Agreement shall
apply to the newly reserved New Shares and the new Registrable Securities.
3. Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance with registration
pursuant to this Agreement shall be borne by Cityscape, and all Selling Expenses
of a Holder shall be borne by such Holder.
4. Registration on Form S-3. Cityscape shall use its best efforts to
remain eligible for registration on Form S-3 or any comparable or successor form
or forms, or, in the event that Cityscape is ineligible to use such form, such
form as Cityscape is eligible to use under the Securities Act.
5. Registration Period. In the case of the registration effected by
Cityscape pursuant to this Agreement, Cityscape will use its best efforts to
keep such registration effective until the Holders have completed the sales or
distribution described in the Registration Statement (or additional registration
statement filed pursuant to Section 2(f) above) relating thereto or, if earlier,
until such time as such Registrable Securities may be sold without any time,
volume or manner
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limitation pursuant to Rule 144(k) (or any similar provision then in effect)
under the Securities Act (provided that Cityscape's transfer agent has accepted
an instruction from Cityscape to such effect).
6. Indemnification.
(a) Cityscape Indemnity. Cityscape will indemnify each Holder, each of
its officers, directors and partners, and each person controlling each Holder,
within the meaning of Section 15 of the Securities Act and the rules and
regulations thereunder with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls, within the meaning of Section 15 of the
Securities Act and the rules and regulations thereunder, any underwriter,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular or
other document (including any related registration statement, notification or
the like) incident to any such registration, qualification or compliance, or
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 Cityscape of the Securities Act or any state
securities law or, in either case, any rule or regulation thereunder applicable
to Cityscape and relating to action or inaction required of Cityscape in
connection with any such registration, qualification or compliance, and will
reimburse each Holder, each of its officers, directors and partners, and each
person controlling such Holder, each such underwriter and each person who
controls any such underwriter for any legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, provided that Cityscape will not be liable in any
such case to a Holder to the extent that any such claim, loss, damage, liability
or expense arises out of or is based on any untrue statement or omission based
upon and in conformity with written information furnished to Cityscape by such
Holder or the underwriter (if any) therefor and stated to be specifically for
use therein. The indemnity agreement contained in this Section 6(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of Cityscape (which
consent will not be unreasonably withheld).
(b) Holder Indemnity. Each Holder will, severally and not jointly, if
Registrable Securities held by it are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify
Cityscape, each of its directors, officers, partners, and each underwriter, if
any, of Cityscape's securities covered by such a registration statement, each
person who controls Cityscape or such underwriter within the meaning of Section
15 of the Securities Act and the rules and regulations thereunder, each other
Holder (if any), and each of their officers, directors and partners, and each
person controlling such other Holder(s) against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statement therein not
misleading, and will reimburse Cityscape and such other Holder(s) and their
directors, officers and partners, underwriters or control persons for any legal
or any other expenses reasonably incurred in connection with investigating and
defending any such claim, loss, damage,
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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 Cityscape by such Holder and stated to be specifically for use
therein, and provided that the maximum amount for which such Holder shall be
liable under this indemnity shall not exceed the net proceeds received by such
Holder from the sale of the Registrable Securities pursuant to such registration
statement. The indemnity agreement contained in this Section 6(b) shall not
apply to amounts paid in settlement of any such claims, losses, damages or
liabilities if such settlement is effected without the consent of such Holder
(which consent shall not be unreasonably withheld).
(c) Procedure. Each party entitled to indemnification under this
Article (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim in any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not be unreasonably withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Article
except to the extent that the Indemnifying Party is materially and adversely
affected by such failure to provide notice. The Indemnifying Party shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for such Indemnified Party, provided, however,
that if separate firm(s) of attorneys is (are) required due to a conflict of
interest, then the Indemnifying Party shall be liable for the reasonable fees
and expenses of each such separate firm. No Indemnifying Party, in the defense
of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an Indemnifying
Party may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
7. Contribution. If the indemnification provided for in Section 6
herein is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities as between Cityscape on the one hand and any Holder on the other, in
such proportion as is appropriate to reflect the relative fault of Cityscape and
of such Holder in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of Cityscape on the one hand and of
any Holder on the other shall be determined by reference to, among other things,
whether the untrue
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or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by Cityscape or by such
Holder.
In no event shall the obligation of any Indemnifying Party to
contribute under this Section 7 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 6(a) or 6(b) hereof had been
available under the circumstances.
Cityscape and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Holders or the underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraphs. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraphs shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this section, no Holder or underwriter shall
be required to contribute any amount in excess of the amount by which, (i) in
the case of any Holder, the net proceeds received by such Holder from the sale
of Registrable Securities or (ii) in the case of an underwriter, the total price
at which the Registrable Securities purchased by it and distributed to the
public were offered to the public exceeds, in any such case, the amount of any
damages that such Holder or underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
8. Survival. The indemnity and contribution agreements contained in
Sections 6 and 7 and the representations and warranties of Cityscape referred to
in Section 2(c)(i) shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement or the Securities Purchase
Agreement or any underwriting agreement, (ii) any investigation made by or on
behalf of any Indemnified Party or by or on behalf of Cityscape, and (iii) the
consummation of the sale or successive resales of the Registrable Securities.
9. Information by Holders. Each Holder shall furnish to Cityscape such
information regarding such Holder and the distribution and/or sale proposed by
such Holder as Cityscape may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement. The intended method or methods of
disposition and/or sale (Plan of Distribution) of such securities as so provided
by such Investor shall be included without alteration in the Registration
Statement covering the Registrable Securities and shall not be changed without
written consent of such Holder.
10. Replacement Certificates. The certificate(s) representing the
Common Stock or Warrant Shares held by any Investor (or then Holder) may be
exchanged by such Investor (or such Holder) at any time and from time to time
for certificates with different denominations representing an equal aggregate
number of Common Stock or Warrant Shares, as reasonably
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requested by such Investor (or such Holder) upon surrendering the same. No
service charge will be made for such registration or transfer or exchange.
11. Transfer or Assignment. The rights granted to the Investors by
Cityscape under this Agreement to cause Cityscape to register Registrable
Securities may be transferred or assigned (in whole or in part) to a transferee
or assignee of Series B Preferred Stock or Warrants, and all other rights
granted to the Investors by Cityscape hereunder may be transferred or assigned
to any transferee or assignee of any Series B Preferred Stock or Warrants;
provided in each case that Cityscape must be given written notice by such
Investor at the time of or within a reasonable time after said transfer or
assignment, stating the name and address of said transferee or assignee and
identifying the securities with respect to which such registration rights are
being transferred or assigned; and provided further that the transferee or
assignee of such rights agrees in writing to be bound by the registration
provisions of this Agreement and such transfer or assignment is permitted by and
made in compliance with the Securities Purchase Agreement.
12. Miscellaneous.
(a) Remedies. Cityscape and the Investors acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which any of them may be entitled by
law or equity.
(b) Jurisdiction. Cityscape and each of the Investors each (i) hereby
irrevocably submit to the exclusive jurisdiction of the United States District
Court, the New York State courts and other courts of the United States sitting
in New York County, New York for the purposes of any suit, action or proceeding
arising out of or relating to this Agreement and (ii) hereby waives, and agrees
not to assert in any such suit action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit, action or
proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper. Cityscape and each of the Investors each
consent to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing in this paragraph
shall affect or limit any right to serve process in any other manner permitted
by law.
(c) Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be effective upon actual
receipt of such mailing. The addresses for such communications shall be:
to Cityscape: Cityscape Financial Corp.
000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
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Attn: Chief Executive Officer
General Counsel
with copies to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxxxxx, Esq.
to the Investors: To each Investor at the address and/or fax
number set forth on the executed counterpart
of the signature page of this Agreement.
Any party hereto may from time to time change its address for notices by giving
at least 10 days' written notice of such changed address to the other parties
hereto.
(d) Waivers. Any term of this Agreement may be amended and the
observance of any term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of Cityscape and the holders of more than 66-2/3% of the Registrable
Securities. Any amendment or waiver effected in accordance with this Section
shall be binding upon each holder of any Registrable Securities at the time,
each future holder of all such securities and Cityscape.
(e) Execution. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement, it being understood that
all parties need not sign the same counterpart.
(f) Publicity. Cityscape agrees that it will not disclose, and will not
include in any public announcement, the name of any Investor without its
consent, unless and until such disclosure is required by law or applicable
regulation, and then only to the extent of such requirement. Except as may be
required by law, Cityscape and each Investor shall consult with each other
before issuing any press release or otherwise making any public statements with
respect to this Agreement and shall not issue any press release or make any such
public statement prior to such consultation.
(g) Entire Agreement. This Agreement, together with the Securities
Purchase Agreement, the Certificate of Designations and the Warrants and the
agreements and documents contemplated hereby and thereby, contains the entire
understanding and agreement of the parties, and may not be modified or
terminated except by a written agreement signed by both parties.
(h) Governing Law. This Agreement and the validity and performance of
the terms hereof shall be governed by, interpreted under, and construed in
accordance with the laws of the State of New York, without regard to any state's
principles of conflict of laws.
(i) Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement
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shall continue in full force and effect without said provision; provided that
such severability shall be ineffective if it materially changes the economic
benefit of this Agreement to any party.
(j) Obligations Several and Not Joint. The parties acknowledge and
agree that the Investors are not agents, affiliates or partners of each other,
that all representations, warranties, covenants and agreements of the Investors
hereunder are several and not joint, that no Investor shall have any
responsibility or liability for the representations, warrants, agreements, acts
or omissions of any other Investor, and that any rights granted to "Investors"
hereunder shall be enforceable by each Investor hereunder.
(k) Titles. The titles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
(l) Rule 144. Cityscape covenants that it will file all reports
required to be filed by it under the Securities Act and the Exchange Act and
that it will take such further action as holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable the
Investor to sell Registrable Securities without registration under the Act
within the limitation of the exemptions provided by (a) Rule 144, as such Rule
may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC. If at any time Cityscape is not required to file
such reports, it will, upon the request of the Investor, make publicly available
other information so long as necessary to permit sales pursuant to Rule 144.
Upon the request of the Investor, Cityscape will deliver to the Investor a
written statement as to whether it has complied with such requirements.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CITYSCAPE FINANCIAL CORP.
By: /s/ Xxxxxx X. Patent
------------------------------------
Name: Xxxxxx X. Patent
Title: Executive Vice President
INVESTOR:
By: ______________________________________
Name:
Title:
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Xxxxxxx Associates, L.P.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: General Partner
Westgate International, L.P.
By: Martley International, Inc., as Attorney-in-Fact
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
RGC International Investors, LDC
By: Xxxx Xxxx Capital Management, L.P.
By: RGL General Partner Corp.
By: /s/ Xxxxx X. Block
Name: Xxxxx X. Block
Title: Managing Director
Salomon Brothers Inc.
By: /s/ Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxx
Title: V.P.
High View Fund, L.P.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
High View Fund
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
High View SSFI Fund, LDC
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
Greenlight Capital, L.P.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Member of General Partner
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Greenlight Capital Offshore, Ltd.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Member of Investment Advisor
The Seedling Fund, L.P.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Member of Investment Advisor
CIBC Wood Gundy Securities Corp.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Director
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