THIRD AMENDMENT TO STIPULATION AND ORDER
Exhibit 99.4
THIRD AMENDMENT TO STIPULATION AND ORDER
THIS THIRD AMENDMENT TO STIPULATION AND ORDER (this “Amendment”) is made and entered into as
of the 17th day of July, 2008, by and between Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx Revocable
Trust, Central Florida Investments (collectively, the “Shareholders”) and Bluegreen Corporation, a
Massachusetts corporation (the “Company”).
WHEREAS, the Shareholders and the Company and its directors are parties to that certain
Stipulation and Order, dated October 16, 2006, as amended by that certain Amendment to Stipulation
and Order, dated May 21, 2007 and that certain Second Amendment to Stipulation and Order, dated
October 15, 2007 (as so amended, the “Stipulation”), pursuant to which, among other things, the
parties thereto settled in full the action among them which was then pending in the United States
District Court for the Southern District of Florida;
WHEREAS, since October 17, 2006, the Shareholders have disposed of 1,160,304 shares of common
stock, par value $0.01 per share, of the Company (“Common Stock”) beneficially owned by them in
accordance with the terms and conditions of the Stipulation and are, and have been at all times, in
compliance with the terms and conditions of the Stipulation;
WHEREAS, as of the date hereof, the Shareholders are the beneficial owners of 8,472,096 shares
of Common Stock;
WHEREAS, the Company previously announced that it may in the future pursue a rights offering
to its shareholders of up to $100 million of shares of Common Stock (such rights offering, as the
terms and conditions thereof may be amended from time to time by the Board of Directors of the
Company, the “Rights Offering”);
WHEREAS, the Company wishes to allow the Shareholders, pursuant to the terms and conditions of
the Rights Offering governing the exercise of basic subscription rights, to acquire shares of
Common Stock upon exercise of the basic subscription rights granted to the Shareholders in the
Rights Offering by virtue of the Shareholders’ ownership of shares of Common Stock on the record
date for the Rights Offering;
WHEREAS, the Shareholders and the Company desire to further amend the Stipulation so as to
permit the Shareholders, pursuant to the terms and conditions of the Rights Offering governing the
exercise of basic subscription rights, to acquire shares of Common Stock upon exercise of the basic
subscription rights granted to the Shareholders in the Rights Offering by virtue of the
Shareholders’ ownership of shares of Common Stock on the record date for the Rights Offering, and
to sell their holdings of Common Stock (including any and all shares of Common Stock that may be
acquired by the Shareholders in the Rights Offering) over an extended period.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and
agreements contained in this Amendment, the parties hereto agree as follows:
1. Stipulation. The foregoing premises are true and correct and are incorporated by
reference herein as an integral part of this Amendment. Capitalized terms used, but not defined,
herein shall have the meanings ascribed to them in the Stipulation. Except as expressly amended by
this Amendment, the Stipulation shall remain unchanged, and the Stipulation, as amended, shall be
in full force and effect.
2. Amendment to Section 1(a) of the Stipulation. The first sentence of Section 1(a) of
the Stipulation is hereby deleted in its entirety and is replaced by the following:
| (a) | “The Shareholders shall, prior to October 16, 2012, sell and fully divest
their beneficial ownership in all of their holdings of Common Stock (including any
and all shares of Common Stock that may be acquired by the Shareholders in the
Rights Offering).” |
3. Amendment to Section 2(c) of the Stipulation. Section 2(c) of the Stipulation is
hereby deleted in its entirety.
4. Amendment to Section 3(a)(i) of the Stipulation. Section 3(a)(i) of the Stipulation
is hereby deleted in its entirety and is replaced by the following:
| (i) | “seek, offer or propose (whether publicly or otherwise) to effect, or
cause or participate in or any way assist any other person to effect or seek, offer
or propose (whether publicly or otherwise) to effect or participate in, (A) any
acquisition of any securities (or beneficial ownership thereof) or assets of the
Company, Xxxxxx Corporation, or BankAtlantic Bancorp, Inc. or any of their
respective parents, subsidiaries, affiliates or divisions (each, a “Restricted
Entity”); (B) any tender or exchange offer, merger or other business combination
involving any Restricted Entity; (C) any recapitalization, restructuring,
liquidation, dissolution or other extraordinary transaction with respect to any
Restricted Entity; or (D) any “solicitation” of “proxies” (as such terms are used in
the Exchange Act and in the proxy rules of the Securities and Exchange Commission)
or consents to vote any voting securities of any Restricted Entity; provided
however, that nothing herein shall prohibit the Shareholders from (X) disposing of
their shares of Common Stock as required by Section 1 of the Stipulation or (Y)
acquiring shares of Common Stock upon exercise of the basic subscription rights
granted to the Shareholders in any Rights Offering by virtue of the Shareholders’
ownership of shares of Common Stock on the record date for the Rights Offering;
provided further however, that, notwithstanding the terms and conditions of the
Rights Offering, the Shareholders acknowledge that they are prohibited from
acquiring any shares of Common Stock upon exercise of over-subscription rights
granted to the
Company’s shareholders in the Rights Offering, regardless of whether the Rights
Offering is fully subscribed for;” |
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5. Shares of Common Stock Acquired in the Rights Offering. The Shareholders
acknowledge and agree that the Shareholders’ ownership of any and all shares of Common Stock
acquired in the Rights Offering shall be subject to, and governed by, the terms and conditions of
the Stipulation and the Rights Plan, including, without limitation, the provisions thereof relating
to the sale and voting of the shares of Common Stock owned by the Shareholders.
6. Rights Plan. The Shareholders and the Company acknowledge and agree that the
provisions of Section 6 of the Stipulation shall again be implemented so as to amend Section 1(a)
of the Rights Plan to accommodate the amendment of Sections 1(a) and 3(a)(i) of the Stipulation
made by this Amendment.
7. Miscellaneous. This Amendment, and the rights and obligations of the parties
hereto, shall be governed by and construed in accordance with the laws of the State of Florida,
without reference to principles of conflict of laws. The captions of this Amendment are not part of
the provisions hereof and shall have no force or effect. This Amendment may be executed in several
counterparts, each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
[ SIGNATURES ON FOLLOWING PAGE ]
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IN WITNESS WHEREOF, the Company and the Shareholders have caused this Amendment to be executed on
the date first above written.
| BLUEGREEN CORPORATION |
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| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
| /s/ | ||||
| Xxxxx X. Xxxxxx | ||||
| XXXXX X. XXXXXX REVOCABLE TRUST |
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| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
| CENTRAL FLORIDA INVESTMENTS |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
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