FOURTH AMENDMENT TO RIGHTS AGREEMENT
Exhibit 99.8
FOURTH AMENDMENT TO RIGHTS AGREEMENT
Fourth Amendment (this “Amendment”) dated as of July 17, 2008 to the Rights Agreement,
dated as of July 27, 2006, between Bluegreen Corporation, a Massachusetts corporation (the
“Company”), and Mellon Investor Services LLC, a New Jersey limited liability company, as
rights agent (the “Rights Agent”), as amended on October 16, 2006, May 21, 2007 and October
15, 2007 (as so amended, the “Agreement”). Capitalized terms used but not defined herein
shall have the meanings set forth in the Agreement.
WHEREAS, the parties hereto entered into the Agreement, pursuant to which the Rights Agent
agreed to act as agent with respect to the Rights, whose privileges and obligations were set forth
in the Agreement;
WHEREAS, the parties desire to amend the Agreement, as further set forth herein; and
WHEREAS, pursuant to Section 27 of the Agreement, the Agreement may be amended by the Company
without the approval of any holders of Right Certificates by a writing signed by the Company and
the Rights Agent.
NOW THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
Section 1. Acquiring Persons. Section 1(a) of the Agreement shall be replaced in its
entirety with the following text:
“Acquiring Person” shall mean any Person (as such term is hereinafter defined) who or
which, together with all Affiliates (as such term is hereinafter defined) and Associates (as
such term is hereinafter defined) of such Person, shall be the Beneficial Owner (as such term
is hereinafter defined) of 10% or more of the Common Shares (as such term is hereinafter
defined) of the Company (as such term is hereinafter defined) then outstanding, but shall not
include (1) the Company, (2) any Subsidiary (as such term is hereinafter defined) of the
Company, (3) any employee benefit plan of the Company or of any Subsidiary of the Company, or
any entity holding Common Shares for or pursuant to the terms of any such plan or (4) Xxxxxx
Corporation, a Florida corporation, or any Affiliate of Xxxxxx Corporation by virtue of its
Affiliation therewith, or any of their respective successors or assigns (“Xxxxxx”).
Notwithstanding the foregoing, no Person, including, without limitation, any of the Xxxxxx
Shareholders (as such term is hereinafter defined) shall become an “Acquiring Person” as the
result of (A) an acquisition of Common Shares by the Company that, by reducing the number of
Common Shares of the Company outstanding, increases the proportionate number of Common Shares
of the Company beneficially owned by such Person to 10% or more of the Common Shares of the
Company then outstanding or (B) an acquisition by such Person of Common Shares upon exercise of
subscription rights granted to the Person in the rights offering which the Company, on February
14, 2008, announced that it intends to pursue (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”); provided, however, that, if a Person shall become the Beneficial Owner
of 10% or more of the Common Shares of the Company then outstanding by reason of share
purchases by the Company or by reason of share acquisitions by the Person upon exercise of
subscription rights granted to the Person in the Rights Offering and shall, after such share
purchases by the Company or share acquisitions by the Person in the Rights Offering, become the
Beneficial Owner of any additional Common Shares of the Company, then such Person shall be
deemed to be an “Acquiring Person.” Notwithstanding the foregoing, if the Board of Directors
determines in good faith that a Person who would otherwise be an “Acquiring Person,” as defined
pursuant to the foregoing provisions of this paragraph (a), (i) has become such inadvertently
or (ii) has become such as the result of contractual obligations that are or purport to be
legally binding entered into prior to, and not materially amended or modified after, the date
of this Agreement and has not acquired 1% or more of the Common Shares of the Company then
outstanding by means other than such contractual obligations since the date of this Agreement,
and in either of case (i) or (ii), such Person divests as promptly as practicable (but in the
case of clause (ii), in no event later than the date 60 calendar days following the date of the
acquisition of beneficial ownership that would otherwise cause such Person to be an Acquiring
Person (the “Divestiture Deadline”)) a sufficient number of Common Shares so that such
Person would no longer be an “Acquiring Person,” as defined pursuant to the foregoing
provisions of this paragraph (a), then such Person shall not be deemed to be an “Acquiring
Person” for any purposes of this Agreement. Pursuant to the Stipulation and Order, dated as of
October 16, 2006, among Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx Revocable Trust, and Central Florida
Investments (together, the “Xxxxxx Shareholders”), the Company and its directors, and
filed with the United States District Court for the Southern District of Florida on October 16,
2006, as amended on May 21, 2007, October 15, 2007 and July 17, 2008 (as so amended, the
“Stipulation”), the Divestiture Deadline shall be extended to October 16, 2012 with
respect to the sale of any and all Common Shares of the Company beneficially owned by the
Xxxxxx Shareholders (including the Common Shares of the Company if any acquired by any of the
Xxxxxx Shareholders in a Company Rights Offering); provided, that if, prior to October 16,
2012, any of the Xxxxxx Shareholders breaches any provision of the Stipulation or fails to
perform its obligations thereunder, the Divestiture Deadline shall be the date that the Board
of Directors of the Company determines that such breach or failure to perform has occurred. For
the avoidance of doubt, if any Person may avoid being an Acquiring Person by divesting Common
Shares as described above, then such Person shall not be considered to become an Acquiring
Person until (I) in the case of clause (i) above, the date that the Board of Directors
determines in good faith that such divestiture has not occurred as promptly as practicable or
(II) in the case of clause (ii) above, the expiration of the Divestiture Deadline.
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Section 2. Governing Law. This Amendment shall be deemed to be a contract made under
the laws of the Commonwealth of Massachusetts and for all purposes shall be governed by and
construed in accordance with the laws of such Commonwealth applicable to contracts to be made and
performed entirely within such Commonwealth; provided, however, that all provisions regarding the
rights, duties and obligations of the Rights Agent shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed entirely
within such State.
Section 3. Effect of Amendment. Except as expressly amended hereby, the Agreement
shall remain unchanged, and the Agreement, as amended hereby, shall be in full force and effect.
Section 4. Counterparts. This Amendment may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
Section 5. Descriptive Headings. Descriptive headings of the several Sections of this
Amendment are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
[ SIGNATURES ON FOLLOWING PAGE ]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and attested,
all as of the day and year first above written.
| Attest: |
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| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
| BLUEGREEN CORPORATION |
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| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
| Attest: |
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| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
| MELLON INVESTOR SERVICES LLC |
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| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
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