REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of the
17th day of July, 1998, by and between EQUIVEST FINANCE, INC., a Florida
corporation (the "Company"), and CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL
LLC, a Delaware limited liability company ("Warrantholder").
RECITAL
WHEREAS, the Company and the Warrantholder desire to provide for the
rights of the Warrantholder with respect to registration of the securities
issued to the Warrantholder upon exercise of Warrant issued to Warrantholder
dated July 17, 1998.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
1.2 "Convertible Securities" shall mean the Warrant or other
securities of the Company convertible into or exchangeable (upon exercise or
otherwise) for Registrable Securities.
1.3 "Holder" shall mean any holder of outstanding Registrable
Securities, and any holder of Registrable Securities to whom the registration
rights conferred by this Agreement have been transferred in compliance with
Section 9 hereof, which Registrable Securities have not been sold to the public.
1.4 The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act ("Registration Statement"), and
the declaration or ordering of the effectiveness of such Registration Statement.
1.5 "Registrable Securities" shall mean all Common Stock of
the Company issued or issuable upon exercise of the Warrant including Common
Stock issued pursuant to recapitalizations, stock splits, stock dividends and
similar distributions with respect to such shares.
1.6 "Registration Expenses" shall mean all expenses incurred
in complying with Section 2 of this Agreement, including, without limitation,
all federal and state registration, qualification and filing fees, printing
expenses, blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration, other than
Selling Expenses, as well as fees and disbursements not to exceed ten thousand
dollars ($10,000) of one special legal counsel for the selling Holders.
1.7 "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
1.8 "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of Registrable Securities
pursuant to this Agreement.
2. REGISTRATION RIGHTS.
2.1 Notice of Registration and Inclusion of Registrable
Securities. On the terms and subject to the conditions of this Agreement, in the
event the Company decides to register any of its Common Stock for its own
account or for the account of security holders other than the Warrantholder on a
form, that would be suitable for a registration involving Registrable
Securities, the Company will: (a) promptly give each Holder written notice
thereof (which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable blue sky or
other state securities laws); and (b) include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request delivered to the Company by any Holder within fifteen (15) days
after delivery of such written notice from the Company.
2.2 Underwriting in Piggyback Registration.
(a) Notice of Underwriting in Piggyback Registration.
If the registration of which the Company gives notice is for a registered public
offering involving an underwriting, the Company shall so advise the Holders as a
part of the written notice given pursuant to Section 2.1. In such event, the
right of any Holder to registration shall be conditioned upon such underwriting
and the inclusion of such Holder's Registrable Securities in such underwriting
to the extent provided in this Section 2. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the other holders distributing their securities through such underwriting) enter
into a customary underwriting agreement with the Underwriter's Representative
selected by the Company for such offering. The Holders shall have no right to
participate in the selection of the underwriters for an offering pursuant to
this Section 2.
(b) Marketing Limitation. In the event the
representative of the Company's underwriter or underwriters (the "Underwriter's
Representative") advises the Company that market factors (including, without
limitation, the aggregate number of shares of Common Stock requested to be
registered, the general condition of the market, and the status of
2
the persons proposing to sell securities pursuant to the registration) require a
limitation of the number of shares to be underwritten, the Underwriter's
Representative may:
(1) in the case of the Company's first
public offering of its Common Stock or other securities pursuant to the
Registration Statement declared effective with the Commission after the
date of this Agreement (the "IPO"), exclude some or all Registrable
Securities from such registration and underwriting; and
(2) in the case of any registered public
offering subsequent to the IPO, limit the number of shares of
Registrable Securities to be included in such registration and
underwriting to not less than twenty percent (20%) of the total
securities to be registered. In such event, the Underwriter's
Representative shall so advise all Holders and the number of shares of
Registrable Securities that may be included in the registration and
underwriting (if any) shall be allocated among all Holders of
Registrable Securities in proportion, as nearly as practicable, to each
Holder's pro rata amount of Registrable Securities held by such Holder
at the time of filing of the Registration Statement. The number of
shares of Registrable Securities to be included in such underwriting
shall not be reduced unless all other securities (including the
securities subject to the Stockholders Agreement between Company and R.
Xxxxx Xxxxxx and Xxxxx Xxxxxx dated July __, 1998 but excluding those
to be sold by the Company) are excluded from the underwriting in
proportion, as nearly as practicable, to each holder's pro rata amount
of the aggregate of Registrable Securities and such other securities.
No Registrable Securities or other securities excluded from the
underwriting by reason of this subsection 2.2(b) shall be included in
such Registration Statement.
(c) Withdrawal in Piggyback Registration. If any
Holder, or a holder of other securities entitled (upon request) to be included
in such registration, disapproves of the terms of any such underwriting, such
Holder may elect to withdraw therefrom by written notice to the Company and the
underwriter delivered at least seven (7) days prior to the effective date of the
Registration Statement. Any Registrable Securities or other securities excluded
or withdrawn from such underwriting shall be withdrawn from such registration.
2.3 Blue Sky in Piggyback Registration. In the event of any
registration of Registrable Securities pursuant to this Section 2, the Company
will exercise its best efforts to register and qualify the securities covered by
the Registration Statement under such other securities or blue sky laws of such
jurisdictions as the Holders shall reasonably request and as shall be reasonably
appropriate for the distribution of such securities; provided, however, that the
Company shall not be required to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
3
3. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with registrations pursuant to Section 2 shall be borne by the
Company. All Selling Expenses shall be borne by the Holders of the securities
registered pro rata on the basis of the number of shares registered.
4. REGISTRATION PROCEDURES. The Company will keep each Holder whose
Registrable Securities are included in any registration pursuant to this
Agreement advised as to the initiation and completion of such registration. At
its expense the Company will: (a) use its best efforts to keep such registration
effective for a period of ninety (90) days or until the Holder or Holders have
completed the distribution described in the Registration Statement relating
thereto, whichever first occurs; (b) furnish such number of prospectuses
(including preliminary prospectuses) and other documents as a Holder from time
to time may reasonably request; (c) prepare and file with the commission such
amendments and supplements to such Registration Statement and the prospectus
used in connection with such Registration Statement as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement; and (d) notify each
Holder of Registrable Securities covered by such Registration Statement at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus
included in such Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing. If, at any time after giving such
written notice of its intention to register any of such securities and prior to
the effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register such
securities, the Company may, at its election, give written notice of such
determination to each Holder of Registrable Securities that has requested to
register Registrable Securities and thereupon the Company shall be relieved of
its obligation to pay any Registrable Expenses in connection therewith to the
extent provided in Section 3).
5. INFORMATION FURNISHED BY HOLDER. It shall be a condition precedent
of the Company's obligations to any Holder under this Agreement that such Holder
of Registrable Securities included in any registration furnish to the Company
such information regarding such Holder and the distribution proposed by such
Holder of Holders as the Company may reasonably request.
6. INDEMNIFICATION.
6.1 Company's Indemnification of Holders. To the extent
permitted by law, the Company will indemnify each Holder, each of its officers,
directors, employees and constituent partners, and each person controlling such
Holder, with respect to which registration, qualification or compliance of
Registrable Securities has been effected pursuant to this Agreement, and each
underwriter, if any, and each person who controls any underwriter against all
claims, losses, damages or liabilities (or actions in respect thereof) to the
extent such claims,
4
losses, damages or liabilities arise out of or are based upon any untrue
statement (or alleged untrue statement) of a material fact contained in any
prospectus or other document (including any related Registration Statement)
incident to any such registration, qualification or compliance, or are based on
any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of the Securities Act, the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or any state securities law, or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law, applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration,
qualification or compliance; and the Company will reimburse each such Holder,
each of its officers, directors, employees and constituent partners, each such
underwriter, and each person who controls any such Holder or underwriter, for
any legal and any other expenses reasonably incurred, as incurred, in connection
with investigating or defending any such claim, loss, damage, liability or
action; provided, however, that the indemnity contained in this Section 6.1
shall not apply to amounts paid in settlement of any such claim, loss, damage,
liability or action if settlement is effected without the consent of the Company
(which consent shall not unreasonably be withheld); and provided, further, that
the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based upon any
untrue statement or omission based upon written information furnished to the
Company by such Holder, its officers, directors, employees, constituent
partners, or legal counsel, underwriter, or controlling person and stated to be
for use in connection with the offering of securities of the Company.
6.2 Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 6 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof and generally summarize such
action. The indemnifying party shall have the right to participate in and to
assume the defense of such claim, jointly with any other indemnifying party
similarly noticed; provided, however, that the indemnifying party shall be
entitled to select counsel for the defense of such claim with the approval of
any parties entitled to indemnification, which approval shall not be
unreasonably withheld; provided further, however, that if either party
reasonably determines that there may be a conflict between the position of the
Company and the Holders in conducting the defense of such action, suit or
proceeding by reason of recognized claims for indemnity under this Section 6,
then counsel for such party shall be entitled to conduct the defense to the
extent reasonably determined by such counsel to be necessary to protect the
interest of such party. The failure to notify an indemnifying party promptly of
the commencement of any such action, if prejudicial to the ability of the
indemnifying party of defend such action, shall relieve such indemnifying party,
to the extent so prejudiced, of any liability to the indemnified party under
this Section 6, but the omission so to notify the indemnifying party will not
relieve such party of any liability that such party may have to any indemnified
party otherwise other than under this Section 6.
5
7. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Holders the benefits of Rule 144 under the Securities Act
("Rule 144") and any other rule or regulation of the Commission that may at any
time permit a Holder to sell securities of the Company to the public without
registration, the Company shall:
(a) make and keep public information available, as
required by Rule 144, at all times after ninety (90)
days after the effective date of the IPO;
(b) file with the Commission in a timely manner all
reports and other documents required of the Company
under the Securities Act and the Exchange Act; and
(c) furnish to any Holder, so long as such Holder owns
any Convertible Securities or Registrable Securities,
forthwith upon request (i) a written statement by the
Company that it has complied with the reporting
requirements of Rule 144 (at any time after ninety
(90) days after the effective date of the IPO), the
Securities Act and the Exchange Act (at any time
after it has become subject to such reporting
requirements); (ii) a copy of the most recent annual
or quarterly report of the Company and such other
reports and documents so filed by the Company; and
(iii) such other information as may be reasonably
requested in availing any Holder of any rule or
regulation of the Commission which permits the
selling of any such securities without registration.
8. TERMINATION OF REGISTRATION RIGHTS. The right to cause the Company
to register securities granted by the Company to the Holders under the Agreement
shall terminate as to each Holder on the earlier of (a) such time as such Holder
owns less than one percent (1%) of the outstanding stock of the Company
(assuming exercise of the Warrant) and is free to sell all of such stock within
a given three (3) month period to the public pursuant to Rule 144; or (b) at
such time as Holder is free to sell all of the stock issuable upon exercise of
the Warrant pursuant to Rule 144(k).
9. TRANSFER OF RIGHTS. The registration rights of the Holders set forth
in this Agreement may be assigned by any Holder to a transferee or assignee of
any Convertible Securities or Registrable Securities not sold to the public
acquiring Convertible Securities or Registrable Securities equaling in aggregate
at least one percent (1%) of the Company's then outstanding equity securities or
all of the Convertible Securities and Registrable Securities held by such Holder
if transferred to a single entity; provided, however, that (a) the Company must
receive written notice prior to the time of said transfer, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such information and registration rights are being assigned;
and (b) the transferee or assignee of such rights must not be a person deemed by
the Board of Directors of the Company to be a competitor or potential competitor
of the Company. Notwithstanding the limitation set forth in the foregoing
sentence
6
respecting the minimum number of shares that must be transferred, any Holder may
transfer such Holder's registration rights to (i) any subsidiary, parent,
general partner or limited partner of such Holder, or any other person or entity
directly or indirectly controlling, controlled by or under common control with
such Holder; or (ii) such Holder's family members by will or intestacy in the
case of individuals, without restriction as to the number or percentage of
shares acquired by any such entity or individuals.
10. MISCELLANEOUS.
10.1 Entire Agreement. This Agreement and the documents
referred to herein constitute the entire agreement among the parties and no
party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth herein
or therein.
10.2 Successors And Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including permitted transferees of any shares of the Registrable Securities or
Convertible Securities). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
10.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York as applied to agreements among
New York as applied to agreements among New York residents entered into and to
be performed entirely within New York.
10.4 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.5 Title and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
10.6 Notices. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified by hand or
professional courier service, by telecopy or by facsimile, one (1) day after
deposit with Federal Express or other overnight delivery service, or two (2)
days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature pages hereof, or at such other
address as such party may designate by five (5) days' advance written notice to
the other parties.
7
10.7 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term o this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively,
and either for a specified period of time or indefinitely), with the written
consent of the Company and a majority in interest of the Holders. Any amendment
or waiver effected in accordance with this Section 10.7 shall be binding upon
each holder of any securities purchased under this Agreement at the time
outstanding (including securities into which such securities have been
converted), each future holder of all such securities and the Company. Upon the
effectuation of each such amendment or waiver, the Company shall promptly give
written notice thereof to the record holders of the Stock and such Common Stock
who have not previously consented thereto in writing.
10.8 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
10.9 Separability. Any invalidity, illegality or limitation of
the enforceability with respect to any Holder of any one or more of the
provisions of this Agreement, or any part thereof, whether arising by reason of
the law of any such Holder's domicile or otherwise, shall in no way affect or
impair the validity, legality or enforceability of this Agreement with respect
to other Holders. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, it shall to the extent practicable, be modified so as
to make it valid, legal and enforceable and to retain as nearly as practicable
the intent of the parties, and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
8
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the day and year first above written.
EQUIVEST FINANCE, INC.
By:
-----------------------------------
Name:
Chairman and CEO
WARRANTHOLDER:
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL, LLC
By:
-----------------------------------
Name:
Title:
Address:
9
