EXHIBIT 10.7
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FORM OF
EQUITYHOLDERS AGREEMENT
BY AND AMONG
GOTHAM GOLF CORP.,
GOTHAM GOLF LLC,
GOTHAM PARTNERS, L.P.
FLORIDA GOLF ASSOCIATES, L.P.,
FLORIDA GOLF PROPERTIES, INC.,
AND
CERTAIN EQUITYHOLDERS OF EACH
DATED AS OF [ ]
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TABLE OF CONTENTS
ARTICLE I
CERTAIN DEFINITIONS PAGE
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Section 1.1 Definitions............................................. 1
Section 1.2 Construction............................................ 4
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Composition of the Corporation Board.................... 5
Section 2.2 Removal and Replacement of Directors.................... 5
Section 2.3 Removal of Founders Director by Shareholders............ 5
ARTICLE III
OTHER AGREEMENTS
Section 3.1 Right of Co-Sale........................................ 5
Section 3.2 Structure of Redemptions................................ 6
ARTICLE IV
TRANSFER RESTRICTIONS
Section 4.1 Restrictions on Transfers............................... 7
Section 4.2 Affiliate Transfers..................................... 8
Section 4.3 Pledge to a Loan Bank................................... 8
Section 4.4 Void Transfers.......................................... 8
Section 4.5 Open-Market Trades...................................... 8
ARTICLE V
REGISTRATION RIGHTS
Section 5.1. Demand Registrations.................................... 8
Section 5.2. Piggy-Back Registration................................. 9
Section 5.3. Termination of Registration Obligations................. 10
Section 5.4. Registration Procedures................................. 11
Section 5.5. Registration Expenses................................... 14
Section 5.6. Indemnification; Contribution........................... 15
ARTICLE VI
TERMINATION
Section 6.1 Termination............................................. 17
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts............................................ 17
Section 7.2 Governing Law........................................... 17
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PAGE
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Section 7.3 Jurisdiction and Forum................................. 17
Section 7.4 Entire Agreement....................................... 17
Section 7.5 Expenses............................................... 17
Section 7.6 Notices................................................ 18
Section 7.7 Successors and Assigns................................. 19
Section 7.8 Headings; Definitions.................................. 19
Section 7.9 Amendments and Waivers................................. 19
Section 7.10 Severability........................................... 20
Section 7.11 Interpretation......................................... 20
Section 7.12 Specific Performance................................... 20
Section 7.13 No Third-Party Beneficiaries........................... 20
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This EQUITYHOLDERS AGREEMENT, dated as of [ ], 2002 (this
"AGREEMENT"), is entered into by and among (i) Gotham Golf Corp., a Delaware
corporation (the "CORPORATION"), in its individual capacity and in its capacity
as a Limited Partner of Gotham Golf Partners, L.P., a Delaware limited
partnership (the "PARTNERSHIP"), (ii) Gotham Golf, LLC, a single-member
Delaware limited liability company and wholly owned subsidiary of the
Corporation (the "GENERAL PARTNER"), in its individual capacity and in its
capacity as general partner of the Partnership, (iii) Gotham Partners, L.P., a
Delaware limited partnership ("GOTHAM"), individually and on behalf of its
Controlled Affiliates, each in its capacity as a shareholder of the
Corporation, (iv) Florida Golf Associates, L.P., a Virginia limited partnership
("FGA"), (v) Florida Golf Properties, Inc., a Virginia corporation ("FGPI"),
and (vi) certain Limited Partners of the Partnership and shareholders of the
Corporation as identified on EXHIBIT A (each a "FOUNDER", collectively
"FOUNDERS", and together with Gotham, FGA, FGPI and their respective Controlled
Affiliates, the "EQUITYHOLDERS").
RECITALS
WHEREAS, the Partnership, Gotham, FGA, FGPI and certain other Persons have
entered into that certain Agreement and Plan of Merger and Contribution, dated
as of February 13, 2002 (the "MERGER AGREEMENT"), which provides, among other
things, that Gotham, FGA, FGPI and certain of Gotham's Affiliates shall
contribute their respective rights, titles and interests in the Partnership to
the Corporation, which in turn shall contribute certain of these rights, titles
and interests to the General Partner, in exchange for the Common Stock of the
Corporation;
WHEREAS, in connection with those matters, the partners of the Partnership
have resolved to amend and restate their agreement of limited partnership in
the form of the Third Amended and Restated Agreement of Limited Partnership of
Gotham Golf Partners, L.P. (the "PARTNERSHIP AGREEMENT");
WHEREAS, the execution of this Agreement is a condition of the obligation of
the parties to the Merger Agreement to consummate the transactions contemplated
thereby; and
WHEREAS, the Corporation, the Partnership and the Equityholders desire to
establish in this Agreement certain terms and conditions concerning their
holdings of Partnership Units and Common Stock and concerning provisions
related to the Equityholders' relationship with and investment in the
Partnership and the Corporation, as the case may be, immediately following the
consummation of the transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 DEFINITIONS. As used in this Agreement, the following terms
shall have the respective meanings set forth below:
"AFFILIATE" shall have the meaning set forth in the Partnership Agreement.
"AGREEMENT" shall have the meaning set forth in the Preamble.
"BANK" shall mean any bank whose deposits are insured under the Federal
Deposit Insurance Act, as amended.
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"BANK DEMAND RIGHT" shall have the meaning set forth in Section 5.1.
"BLACKOUT PERIOD" shall have the meaning set forth in Section 5.1.
"BUSINESS DAY" shall have the meaning set forth in the Partnership Agreement.
"COMMON STOCK" shall mean the common stock, par value $0.01 per share, of
the Corporation.
"COMMON STOCK EQUIVALENTS" shall mean shares of Common Stock issuable upon
redemption of the Partnership Units.
"CONTROL" (including terms with correlative meanings such as "CONTROLLED",
"CONTROLLING", "CONTROLLED BY" and "UNDER COMMON CONTROL") shall mean, with
respect to any Person, the possession, directly or indirectly, of (i) greater
than 51% of the economic interests of a Person and (ii) the power to direct or
cause the direction of the management policies of that Person, whether through
ownership of voting securities or otherwise.
"CORPORATION" shall have the meaning set forth in the Preamble.
"CORPORATION BOARD" shall have the meaning set forth in Section 2.1.
"CORPORATION INTEREST" shall mean, with respect to any Person, such Person's
percentage ownership (direct and indirect) of the outstanding Common Stock at
the time of measurement, including (i) that number of shares of Common Stock
for which such Person's Partnership Units can be redeemed pursuant to the
Partnership Agreement and (ii) that number of shares of Common Stock arising
from Transfers from another Equityholder to such Person, but in any case, shall
not include any Market Shares owned (directly or indirectly) by such Person.
"DEMAND REGISTRATION" shall have the meaning set forth in Section 5.1.
"DEMAND REQUEST" shall have the meaning set forth in Section 5.1.
"DEMAND SHARES" shall have the meaning set forth in Section 5.1.
"DIRECTOR" shall mean one or more of the members of the Corporation Board,
as the context may require.
"EFFECTIVE PERIOD" shall have the meaning set forth in Section 5.4.
"EQUITYHOLDERS" shall have the meaning set forth in the Preamble.
"FAIR MARKET VALUE" shall mean, with respect to any Person's Common Stock or
Partnership Units redeemable for Common Stock, the average of the daily market
price for the Common Stock or the Common Stock issued upon redemption of the
Partnership Units, as the case may be, for the ten (10) consecutive trading
days immediately preceding the relevant time of measurement. The market price
for each such trading day shall be: (i) if the Common Stock is listed or
admitted to trading on any securities exchange or inter-dealer quotation system
of a registered securities association, the closing price, regular way, on such
day or, if no such sale takes place on such day, the average of the closing bid
and asked prices on such day; (ii) if the Common Stock is not listed or
admitted to trading on any securities exchange or the inter-dealer quotation
system of a registered securities association, the last reported sale price on
such day or, if no sale takes place on such day, the average of the closing bid
and asked prices on such day, as reported by a reliable quotation source
designated by the General Partner, in its sole discretion, or (iii) if the
Common Stock is not listed or admitted to trading on any securities exchange or
the inter-dealer quotation system of a registered securities association and no
such last reported sale price or closing bid and asked prices are available,
the average of the reported high bid and low asked prices on such day, as
reported by a reliable quotation source designated by the General Partner, in
its sole
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discretion, or, if there shall be no bid and asked prices on such day, the
average of the high bid and low asked prices, as so reported, on the most
recent day (not more than ten (10) days prior to the date in question) for
which prices have been so reported; PROVIDED that if there are no bid and asked
prices reported during the ten (10) days prior to the date in question, the
Fair Market Value of the Common Stock shall be determined by the General
Partner acting in good faith on the basis of such quotations and other
information as it considers appropriate.
"FAMILY" shall mean, with respect to a particular Equityholder, such
Equityholder's estate and heirs and current and former spouse(s), parents,
parents-in-law, children, children-in-law, siblings, nephews, nieces and
grandchildren and any trust, entity or estate, all of the beneficiaries and/or
actual and beneficial owners of which consist solely of such Equityholder or
such Equityholder's current or former spouse(s), parents, parents-in-law,
children, children-in-law, siblings, nephews, nieces and grandchildren.
"FGA" shall have the meaning set forth in the Preamble.
"FGPI" shall have the meaning set forth in the Preamble.
"FOUNDER" AND "FOUNDERS" shall have the meanings set forth in the Preamble.
"FOUNDERS DIRECTOR" shall have the meaning set forth in Section 2.1.
"GENERAL PARTNER" shall have the meaning set forth in the Preamble.
"GOTHAM" shall have the meaning set forth in the Preamble.
"GOTHAM DEMAND RIGHT" shall have the meaning set forth in Section 5.1.
"GOVERNMENTAL ENTITY" shall mean any federal, state or local political
subdivision or other governmental agency or instrumentality, foreign or
domestic.
"LIMITED PARTNER" shall have the meaning set forth in the Partnership
Agreement.
"LOAN BANK" shall have the meaning set forth in Section 4.1(a).
"MARKET SHARES" shall mean Common Stock purchased by a Person through an
Open-Market Trade.
"MAXIMUM NUMBER" shall have the meaning set forth in Section 5.2.
"MERGER AGREEMENT" shall have the meaning set forth in the Recitals.
"OPEN-MARKET TRADE" shall mean any purchase or sale on (i) a securities
exchange or inter-dealer quotation system on which or through which the Common
Stock is traded or (ii) the over-the-counter market.
"OPTION" shall have the meaning set forth in Section 3.1(b).
"OTHER HOLDER" shall have the meaning set forth in Section 5.2.
"PARTNERSHIP" shall have the meaning set forth in the Preamble.
"PARTNERSHIP AGREEMENT" shall have the meaning set forth in the Recitals.
"PARTNERSHIP UNITS" shall have the meaning set forth in the Partnership
Agreement.
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"PARTY" shall mean each of the parties hereto and any Persons who become a
party hereto in accordance with Section 4.2.
"PERMITTED TRANSFERS" shall have the meaning set forth in Section 4.1.
"PERSON" shall mean any individual, partnership, limited liability company,
firm, corporation, association, joint venture, trust or other entity or any
Governmental Entity.
"PIGGY-BACK REGISTRATION" shall have the meaning set forth in Section 5.2.
"PIGGY-BACK REQUEST" shall have the meaning set forth in Section 5.2.
"PROHIBITED SALE" shall have the meaning set forth in Section 3.1(b).
"PURCHASER" shall have the meaning set forth in Section 3.1(a).
"PROSPECTIVE SELLER" shall have the meaning set forth in Section 3.1(a).
"REDEMPTION RIGHT" shall have the meaning set forth in the Partnership
Agreement.
"REGISTRABLE SHARES" shall have the meaning set forth in Section 5.1.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SUBSIDIARY" shall mean, when used with respect to any Person, any Affiliate
of such Person that is Controlled by such Person.
"TOTAL CORPORATION INTEREST" shall mean, with respect to any Person, the sum
of (i) such Person's Corporation Interest and (ii) any Market Shares owned
(directly or indirectly) by such Person (expressed as a percentage of the
outstanding Common Stock at the time of measurement).
"TRANSFER" shall mean, in verb or noun form, any direct or indirect sale,
assignment, gift, encumbrance, hypothecation, mortgage, tender, exchange, any
other disposition by law or otherwise or other derivative transaction that has
the effect of materially changing the economic benefits and risks of ownership.
Section 1.2 CONSTRUCTION. Unless the context requires otherwise: (a) the
gender (or lack of gender) of all words used in this Agreement includes the
masculine, feminine and neuter; (b) references to Articles and Sections refer
to Articles and Sections of this Agreement; (c) references to Exhibits refer to
the Exhibits attached to this Agreement; (d) references to laws refer to such
laws as they may be amended from time to time, and references to particular
provisions of a law include any corresponding provisions of any succeeding law;
(e) references to money refer to legal currency of the United States of
America; (f) the word "including" means "including, without limitation"; (g)
wherever the words "in its sole discretion", "in the General Partner's
discretion" (including, with correlative meanings, the terms "absolute
discretion" or "individual discretion" or similar words or phrases), as applied
to decisions, determinations, judgments, actions, undertakings or exercises of
power and/or authority by the General Partner or the Corporation (whether on
behalf of the Partnership or otherwise), shall be interpreted to mean that (i)
the General Partner or the Corporation (as the case may be) may decide, make
determinations, adjudge, act, undertake undertakings or exercise its power
and/or authority with respect to such matters without reference to its
fiduciary or other duties, whether arising under law, equity or otherwise owing
to the Partnership, or the partners and Limited Partners thereof or any other
Persons, other than contractual duties arising on account hereof and (ii) the
Founders, in their capacity as Limited Partners of the
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Partnership, shall be deemed to have consented to and/or approved all such
matters without any further action on their or the General Partner's part; and
(h) all capitalized terms defined herein are equally applicable to both the
singular and plural forms of such terms. For the avoidance of doubt, nothing
contained in this Section 1.2 shall be deemed to be a waiver by any
Equityholder or as an admission by the General Partner, in connection with any
claims for breach of fiduciary duty against the General Partner for any acts or
omissions occurring after the date hereof.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 COMPOSITION OF THE CORPORATION BOARD. Each of the Equityholders
shall, and shall cause its Controlled Affiliates to, make nominations and vote
their respective Total Corporation Interest, so that the Corporation shall be
managed by a board of directors (the "CORPORATION BOARD") that, subject to the
Corporation's Certificate of Incorporation and Bylaws (in each case, as amended
from time to time), shall be comprised of seven (7) Persons, including, one (1)
individual designated by those Founders who have a Corporation Interest greater
than zero, acting as a single group (the "FOUNDERS DIRECTOR"). The Founders
Director shall serve as a Director until his or her successor is duly elected
and qualified or until his or her earlier resignation or removal. The Founders
shall, among themselves, establish the terms and conditions for designating the
Founders Director and, if no such agreement is reached, the designee required
by this Section 2.1 shall be designated by that certain Founders Agreement,
dated as of the date hereof, by and among the Founders.
Section 2.2 REMOVAL AND REPLACEMENT OF DIRECTORS. Each Equityholder shall,
and shall cause its Affiliates to, vote their respective Total Corporation
Interest to remove the Founders Director at the request of the Founders, acting
as a single group, at any time and for any reason (or for no reason). Subject
to the Corporation's Certificate of Incorporation and Bylaws, as amended from
time to time, should the Founders Director be unwilling or unable to continue
to serve, or otherwise cease to serve (including by reason of his or her
involuntary removal or at the expiration of any applicable term of office),
then each of the Equityholders shall, and shall cause its Affiliates to, make
nominations and vote their respective Total Corporation Interest to fill the
resulting vacancy on the Corporation Board by a Person designated by the
Founders, as provided in Section 2.1.
Section 2.3 REMOVAL OF FOUNDERS DIRECTOR BY SHAREHOLDERS. None of the
Equityholders or their Controlled Affiliates shall participate in, nor shall
they cooperate with, any effort, or execute any resolution proposed by
shareholders of the Corporation other than the Equityholders, to remove the
Founders Director so long as the Founders Director is either Xxxx Xxxxxxxxxxx
or R. Xxxxxx Xxxx.
ARTICLE III
OTHER AGREEMENTS
Section 3.1 RIGHT OF CO-SALE.
(a) None of the Equityholders nor their respective Affiliates (each, a
"PROSPECTIVE SELLER") shall Transfer any part or all of its Corporation
Interest to any Person unless the prospective transferee (the "PURCHASER")
offers to purchase from each other Equityholder on terms no less favorable than
those offered to the Prospective Seller up to a number of shares of Common
Stock such that, in the case of a Transfer of a Person's Corporation Interest,
if each Equityholder accepts such offer in full, the ratio of the aggregate
number of shares of Common Stock and Common Stock Equivalents directly or
indirectly held by the Prospective Seller immediately before such Transfer to
the aggregate number of shares of Common Stock and Common Stock Equivalents
directly or indirectly held by the Prospective Seller immediately after such
Transfer shall be equal to the ratio of the aggregate number of shares of
Common Stock and Common Stock Equivalents directly or indirectly held by the
other Equityholders immediately before such Transfer to the aggregate number of
shares of Common Stock and
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Common Stock Equivalents directly or indirectly held by such Equityholders
immediately after such Transfer. The Prospective Seller shall send to each
other Equityholder a written notice of the Purchaser's offer to purchase shares
of Common Stock (including Common Stock Equivalents that are redeemed for
Common Stock) pursuant to this Section 3.1 at least 30 days prior to the
closing of any sale of shares of Corporation Interests by any Prospective
Seller. Such other Equityholders may accept the Purchaser's offer in whole or
in part and shall evidence its acceptance of the Purchaser's offer by sending a
notice of acceptance to the Prospective Seller and the Purchaser within 30 days
after receipt of the notice of the Purchaser's offer. An Equityholder that does
not accept the Purchaser's offer (in whole or in part) in accordance with the
foregoing sentence shall be deemed to have rejected the Purchaser's offer.
(b) If a Prospective Seller Transfers any Corporation Interest to any Person
in contravention of the preceding Section 3.1(a) (a "PROHIBITED SALE"), each
other Equityholder shall have the option (the "OPTION") to sell to such
Prospective Seller up to a number of shares of Common Stock equal to the number
of shares that such Equityholder would have had the right to sell in connection
with the Prohibited Sale had such Prospective Seller and such Purchaser
complied with the terms of this Agreement. The price per share of Common Stock
that the Prospective Seller shall pay to each Equityholder in the event any
such Equityholder exercises its Option shall be equal to the price per share of
Common Stock paid to the Prospective Seller in the Prohibited Sale. An Option
may be exercised by an Equityholder within 30 days after it has received notice
or otherwise become aware of the Prohibited Sale, and may be exercised in whole
or in part. The Prospective Seller shall reimburse each Equityholder for any
reasonable expenses, including attorneys' fees, in exercising an Option.
(c) The Corporation and the Partnership shall not consummate or facilitate
the consummation of any Transfer of Corporation Interest that is subject to
this Section 3.1 unless the prospective transferee simultaneously consummates
its corresponding purchase from each of the Equityholders that has exercised
its right to participate in such Transfer.
(d) In the event that any Equityholder elects not to sell the full number of
shares of Common Stock that it is entitled to sell pursuant to paragraph (a) or
(b) above, the unexercised portion of its right to participate in such a sale
shall be allocated to and among the other Equityholders on a pro rata basis
according to their holdings of Common Stock (and Partnership Units redeemable
for Common Stock) or as such other Equityholders otherwise agree to allocate
such unexercised portion. An Equityholder may exercise its foregoing right to
sell an increased number of shares of Common Stock in whole or in part. In the
event that the Equityholders do not elect to sell the full number of shares of
Common Stock that they are entitled to sell pursuant to paragraphs (a), (b) and
(d), (i) such remaining unexercised portion may be sold by the Prospective
Seller to the Purchaser on terms no more favorable to the Prospective Seller
than those originally proposed, and (ii) such sale must take place during the
period ending 45 days after delivery of the notice required to be sent to the
Equityholders pursuant to Section 3.1(a).
(e) Anything to the contrary herein notwithstanding, it is acknowledged and
agreed that Sections 3.1(a), (b) and (c) shall not apply to (i) Transfers of
Common Stock by the Corporation to any Person, (ii) Transfers of Partnership
Units by the Partnership, (iii) Transfers by Equityholders to any of their
Affiliates, (iv) Transfers from an Equityholder to any other Equityholder, or
(v) Open-Market Trades of Common Stock, and (vi) distributions of Common Stock
by Gotham or its Affiliates to their respective limited partners or beneficial
owners.
Section 3.2 STRUCTURE OF REDEMPTIONS. At the request of any Equityholder,
the General Partner shall use its reasonable commercial efforts to structure
any redemption on account of the exercise of an Equityholder's Redemption Right
as a purchase of such Equityholder's interest in the Partnership by the
Partnership. For purposes of clarity, it is acknowledged and agreed that,
irrespective of whether a redemption is structured as a purchase by the
Partnership or as a purchase by the General Partner, the General Partner shall
determine, in its sole discretion, whether the Redemption Amount is the Cash
Amount or the GGC Shares Amount (each as defined in the Partnership Agreement).
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ARTICLE IV
TRANSFER RESTRICTIONS
Section 4.1 RESTRICTIONS ON TRANSFERS. (a) Except as otherwise provided
herein (including Article III), and, with respect to Xxxx Xxxxxxxxxxx, subject
to the Employment Agreement between the Partnership and Xxxx Xxxxxxxxxxx, dated
as of the date hereof, for a period ending 18 months after the date hereof,
each Founder agrees that he or she shall not Transfer or commit to Transfer
(including engaging in any derivative or hedging transaction (such as
short-selling or buying or selling options) that has the effect of changing the
economic benefits or risks of ownership of) any of his or her Corporation
Interests or Partnership Units. The foregoing notwithstanding, each Founder may
engage in the following Transfers (the "PERMITTED TRANSFERS"):
(1) subject to paragraph (c) of this Section 4.1 and Section 4.2, each
Founder may Transfer all or any portion of his or her Common Stock or
Partnership Units to any of his or her Controlled Affiliates;
(2) subject to applicable law and the Partnership Agreement, each of FGA,
FGPI, Xxxxxxx X. Xxxxxxx, the Sydne Xxxxxxx Xxxxxxx Trust, the Xxxxxxx
Xxxxxxxxx Xxxxxxx Trust, the Xxxxxxx Xxxx Xxxxxxx Trust, the Xxxxxxx Xxx
Xxxxxxx 1996 Trust and the Xxxxx Xxxx Xxxxxxx 1997 Trust shall not be
restricted in any way from Transferring all or any portion of their Common
Stock or Partnership Units;
(3) subject to paragraph (c) of this Section, each Founder may Transfer
all or any portion of his or her Common Stock or Partnership Interest to (a)
any other Limited Partner, or (b) such Founder's Family;
(4) subject to paragraph (c) of this Section, in the event that, pursuant
to clauses (i), (ii)(B) and (ii)(C) of Section 5.1.E of the Partnership
Agreement, a Tax Loan (as such term is defined in the Partnership Agreement)
is not made to an Equityholder, then any such Equityholder that otherwise
would have been entitled to a Tax Loan under the Partnership Agreement on
account of a sale of assets by the Partnership shall have the right to
Transfer that portion of its Common Stock that it then owns in an amount
equal to the number of shares of Common Stock having a Fair Market Value
less than or equal to the Tax Loan that otherwise would have been made but
for the application of clauses (i), (ii)(B) and (ii)(C) of Section 5.1.E of
the Partnership Agreement; and
(5) subject to Section 4.3, any Founder may pledge as collateral for
loans, including loans provided by any Bank (any such Bank that provides
such loan hereinafter referred to as the "LOAN BANK") up to an amount equal
to the difference between (A) two-thirds (66 2/3%) of the Fair Market Value
(measured as of the time of the pledge) of his or her Corporation Interests
and (B) any of his or her outstanding debt to the Partnership, the
Corporation, the General Partner or any other Person (including any other
Loan Bank), secured by Corporation Interests and/or Partnership Units.
For purposes of clarity, it is acknowledged and agreed that this Section
4.1(a) constitutes an agreement in respect of pledges and Transfers as
contemplated by Section 11.1.B of the Partnership Agreement.
(b) In the event of a foreclosure by the Loan Bank, a subsequent Transfer
of Common Stock shall only be permitted hereunder if the Loan Bank becomes a
party to this Agreement, but only for purposes of Article V, by executing an
adoption agreement in substantially the form of EXHIBIT B; PROVIDED that
EXHIBIT B shall be revised to reflect that the Loan Bank's obligation is
limited to the matters described in Article V.
(c) If any Founder desires to Transfer all or any portion of his or her
Corporation Interests pursuant to clauses (1), (3), (4) or (5) of Section
4.1(a), such Transfer shall be permitted only if, after giving effect to
such Transfer: (X) two-thirds (66 2/3%) or less of the Fair Market Value
(measured as of the time of the Transfer) of such Founder's remaining
Corporation Interest remains subject to any lien including as collateral to
or security for any outstanding debt to the Partnership, the Corporation,
the General Partner, a Loan Bank or any other Person and (Y) in the case of
clauses (3), (4) and (5) of Section 4.1(a) hereof, the transferee executes
an Assumption Agreement in the form of EXHIBIT C.
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Section 4.2 AFFILIATE TRANSFERS. If any Equityholder desires to Transfer
all or any portion of its Corporation Interest to a Controlled Affiliate, such
Transfer shall be permitted hereunder only if the transferee executes an
adoption agreement substantially in the form of EXHIBIT B.
Section 4.3 PLEDGE TO A LOAN BANK. If any Founder pledges all or any
portion of his or her Corporation Interests, Common Stock or Partnership Units
to a Loan Bank pursuant to clause (5) of Section 4.1(a), and the Loan Bank
forecloses or is reasonably expected to foreclose on the loan, at such time
such Founder shall be deemed to have exercised his or her Redemption Right
under Section 8.6 of the Partnership Agreement for any Partnership Units
collateralizing the pledge in advance of any Transfer of any Corporation
Interest or Common Stock to the Loan Bank on account of such foreclosure. In
advance of entering into any pledge arrangement as contemplated by this Section
4.1, the subject Founder shall inform the subject Loan Bank in writing of the
restrictions contained herein.
Section 4.4 VOID TRANSFERS. Any purported Transfer of all or any portion of
a Corporation Interest shall be void if: (1) such Transfer is not explicitly
permitted hereby; (2) such Transfer would violate or otherwise require any
registration or similar action or undertaking under any of the Securities Act
of 1933, the Securities Exchange Act of 1934, the Investment Company Act of
1940, the Investment Advisors Act of 1940 (collectively, the "SECURITIES ACTS")
or any regulations promulgated under any of the Securities Acts; or (3) such
Transfer would result in the Partnership being deemed a "publicly traded
partnership" as defined under Section 7704(b) of the Internal Revenue Code of
1986, as amended. The provisions hereof with respect to Corporation Interests
shall apply equally to any rights or options to purchase, or securities
convertible into or exchangeable for, Corporation Interests.
Section 4.5 OPEN-MARKET TRADES. Anything contained herein to the contrary
notwithstanding (including any restrictions in Article III and Article IV),
following the consummation of the transactions contemplated by the Merger
Agreement, subject to applicable securities laws, (i) each Equityholder and its
Affiliates may make Open-Market Trades of Common Stock or any other equity
interest without restriction, and (ii) any purchase or sale of Market Shares
shall not be subject to any restrictions contained herein.
ARTICLE V
REGISTRATION RIGHTS
Section 5.1 DEMAND REGISTRATIONS. (a) (i) Gotham may, on its own behalf and
on behalf of its Controlled Affiliates (the "GOTHAM DEMAND RIGHT"), at any time
after the date hereof and on an unlimited number of occasions but not more
frequently than once during any nine-month period, and (ii) separately, subject
to Section 5.3, any Loan Bank may, on its own behalf (the "BANK DEMAND RIGHT"),
at any time following the foreclosure of a pledge collateralized by a Founder's
Corporation Interests and consequential Transfer of Common Stock to the Loan
Bank, on not more than three (3) separate occasions in the aggregate and not
more frequently than once during any nine-month period, require the Corporation
to file a registration statement under the Securities Act in respect of all or
a portion of the Common Stock then held by Gotham and its Controlled Affiliates
or the Loan Bank, as the case may be (the "REGISTRABLE SHARES"), by delivering
to the Corporation written notice stating that such right is being exercised,
specifying the number of shares of Common Stock to be included in such
registration (the shares subject to such request, the "DEMAND SHARES") and
describing the intended method of distribution thereof, which may include an
underwritten offering (a "DEMAND REQUEST"). With respect to any Demand Request
or any registration of Demand Shares on account thereof, the Corporation may
condition its compliance with its obligations hereunder on Gotham's and its
Controlled Affiliates' or the Loan Bank's, as the case may be, agreeing in
writing to keep confidential all matters related hereto. Upon receiving a
Demand Request, the Corporation shall (i) use reasonable best efforts to file
as promptly as reasonably practicable a registration statement on such form as
the Corporation, in its sole discretion, may reasonably deem appropriate
(provided that the Corporation shall not be obligated to register any
securities on a "shelf" registration statement
8
or otherwise to register securities for offer or sale on a continuous or
delayed basis), providing for the registration of the sale of such Demand
Shares pursuant to the intended method of distribution (a "DEMAND
REGISTRATION") and (ii) after the filing of an initial version of the
registration statement, use reasonable best efforts to cause such registration
statement to be declared effective under the Securities Act as promptly as
practicable after the date of filing of such registration statement.
(b) Notwithstanding anything in this Agreement to the contrary, the
Corporation shall be entitled to postpone and delay, for reasonable periods of
time, but in no event more than an aggregate of 180 days during any 12-month
period (a "BLACKOUT PERIOD"), the filing or effectiveness of any Demand
Registration if the Corporation shall determine that any such filing or the
offering of any Registrable Shares would (i) in the good faith judgment of the
Corporation Board, impede, delay or otherwise interfere with any pending or
contemplated material acquisition, disposition, corporate reorganization or any
other transaction involving the Corporation, (ii) based upon advice from the
Corporation's investment banker or financial advisor, adversely affect any
pending or contemplated financing, offering or sale of any class of securities
by the Corporation or any of its Affiliates or (iii) in the good-faith judgment
of the Corporation Board, require disclosure of material non-public information
(other than information relating to an event described in clauses (i) or (ii)
above) that, if disclosed at such time, would be harmful to the best interests
of the Corporation and its equityholders; PROVIDED, HOWEVER, that the
Corporation shall give written notice to Gotham (on its behalf and its
Controlled Affiliates) or the subject Loan Bank, as the case may be, of its
determination to postpone or delay the filing of any Demand Registration; and
PROVIDED, FURTHER, that in the event that the Corporation proposes to register
Common Stock, whether or not for sale for its own account, during a Blackout
Period, Gotham and its Controlled Affiliates or the Loan Bank, as the case may
be, shall have the right to exercise their respective rights under Section 5.2
of this Agreement with respect to such registration, subject to the limitations
contained in this Agreement on the exercise of such rights. Upon notice by the
Corporation to Gotham and its Controlled Affiliates or the Loan Bank, as the
case may be, of any such determination, such persons shall keep the fact of any
such notice strictly confidential, and during any Blackout Period, promptly
halt any offer, sale, trading or Transfer by it of any Common Stock for the
duration of the Blackout Period set forth in such notice (or until such
Blackout Period shall be earlier terminated in writing by the Corporation) and
promptly halt any use, publication, dissemination or distribution of the Demand
Registration, each prospectus included therein, and any amendment or supplement
thereto by it for the duration of the Blackout Period set forth in such notice
(or until such Blackout Period shall be earlier terminated in writing by the
Corporation) and, if so directed by the Corporation, will deliver to the
Corporation any copies then in its possession of the prospectus covering such
Registrable Shares.
(c) In connection with an underwritten offering, if the managing underwriter
or co-managing underwriter reasonably and in good faith shall have advised the
Corporation that, in its opinion, the number of Demand Shares subject to a
Demand Request exceeds the number that can be sold in such offering, then the
Corporation shall include in such registration the number of Demand Shares
that, in the opinion of such managing underwriter or underwriters, can be sold
in such offering.
(d) In connection with any underwritten offering, the managing underwriter
for such Demand Registration shall be selected by the Corporation, PROVIDED
that such managing underwriter shall be a nationally recognized investment
banking firm and shall be reasonably acceptable to Gotham (on its own behalf
and on behalf of its Controlled Affiliates) and the Loan Bank, as applicable.
The Corporation may, at its option and in its sole discretion, select a
nationally recognized investment banking firm to act as co-managing underwriter.
(e) Nothing in this Article V shall affect or supersede any of the transfer
restrictions set forth in Article IV hereof or any of the other provisions of
this Agreement.
Section 5.2 PIGGY-BACK REGISTRATION. (a) If, at any time following (i) the
exercise of a Gotham Demand Right or (ii) the foreclosure of a pledge
collateralized by a Founder's Corporation Interests and consequential Transfer
of Common Stock to the Loan Bank, the Corporation proposes to register any
Common Stock under the Securities Act on its behalf or on behalf of any of its
equityholders, on a form and in a manner that would permit
9
registration of the Registrable Shares (other than in connection with dividend
reinvestment plans, rights offerings or a registration statement on Form S-4 or
S-8 or any similar successor form), the Corporation shall give reasonably
prompt written notice to (A) the Founders (but only in the case of the exercise
by Gotham of a Gotham Demand Right) and (B) the Loan Bank, of the Corporation's
intention to do so, which notice shall be given to such persons not less than
fifteen (15) Business Days prior to the contemplated filing date for such
registration statement. Upon the written election of (i) the Founders (but only
in the case of the exercise by Gotham of a Gotham Demand Right) or (ii) the
Loan Bank (in either case, a "PIGGY-BACK REQUEST"), given to the Corporation
within ten (10) Business Days following the receipt of any such written notice
(which election shall specify the number of the Registrable Shares intended to
be disposed of by the Founders or the Loan Bank, as the case may be), the
Corporation shall include in such registration statement (a "PIGGY-BACK
REGISTRATION"), subject to the provisions of this Section 5.2 and, in the case
of a registration on behalf of any of the Corporation's equityholders, subject
to the rights of such equityholders, such number of the Registrable Shares as
shall be set forth in such Piggy-Back Request; PROVIDED, HOWEVER, that in the
case of a Piggy-Back Request by any Founders, the number of Registrable Shares
available for registration on account of such Piggy-Back Request shall not
exceed a number of shares of Common Stock such that, if each Founder exercised
its Piggy-Back Request in full, the ratio of the aggregate number of shares of
Common Stock and Common Stock Equivalents directly or indirectly held by such
Founder immediately before the subject Piggy-Back Registration to the aggregate
number of shares of Common Stock and Common Stock Equivalents directly or
indirectly held by such Founder immediately after such Piggy-Back Registration
shall be equal to the ratio of the aggregate number of shares of Common Stock
and Common Stock Equivalents directly or indirectly held by Gotham and its
Controlled Affiliates immediately before a Demand Registration to the aggregate
number of shares of Common Stock and Common Stock Equivalents directly or
indirectly held by Gotham and its Controlled Affiliates immediately after such
Demand Registration. In the event any Founder elects to submit a Piggy-Back
Request for less than the full number of shares of Common Stock that it is
entitled to request pursuant to this Section 5.2, the unexercised portion of
its right to so request shall be allocated to and among the other Founders on a
pro rata basis according to their holdings of Common Stock and Common Stock
Equivalents, or as such other Founders otherwise agree to allocate such
unexercised portion. A Founder may exercise its Piggy-Back Request in whole or
in part. Any registration effected under this Section 5.2 shall decrease the
obligations of the Corporation to effect a Demand Registration in respect of a
Bank Demand Right required under Section 5.1(a) by one.
(b) In the event that the Corporation proposes to register Common Stock in
connection with an underwritten offering, and a nationally recognized
investment banking firm selected by the Corporation to act as managing
underwriter thereof reasonably and in good faith has advised the Corporation or
any other holder of Common Stock intending to offer Common Stock in the
offering (each, an "OTHER HOLDER") that, in its opinion, the inclusion in the
registration statement of some or all of the Registrable Shares sought to be
registered by Gotham (and its Controlled Affiliates), the Founders or the Loan
Bank would adversely affect the price or success of the offering, then the
Corporation shall include in such registration statement such number of shares
of Common Stock that the Corporation was advised can be sold in such offering
without such an effect (the "MAXIMUM NUMBER") as follows and in the following
order of priority: (A) FIRST, such number of shares of Common Stock as the
Corporation intended to be registered and sold by the Corporation if such
registration was initiated by the Corporation or, if such registration is on
behalf of any Other Holders, such number of shares of Common Stock as such
Other Holders intended to be registered and sold, and (B) SECOND, if and to the
extent that the number of shares of Common Stock to be registered under clause
(A) is less than the Maximum Number, such number of shares of Common Stock as
Gotham and its Controlled Affiliates, the Loan Bank, the Corporation (if such
registration was not initiated by the Corporation) and any Other Holders (or
additional Other Holders), as the case may be, shall have intended to register
that, when added to the number of shares of Common Stock to be registered under
clause (A), is less than or equal to the Maximum Number on a pro rata basis
according to the total number of shares of Common Stock intended to be
registered by each such Person.
Section 5.3 TERMINATION OF REGISTRATION OBLIGATIONS. Anything in this
Agreement to the contrary notwithstanding, if at any time the Corporation shall
obtain a written opinion of legal counsel to the effect that the Registrable
Shares may be publicly offered for sale in the United States by Gotham and its
Controlled
10
Affiliates or the Loan Bank without restriction as to manner of sale and amount
of securities sold and without registration under the Securities Act, the
Corporation shall no longer be obligated to file or maintain a registration
statement with respect to the Registrable Shares pursuant to this Agreement,
unless at a later date Gotham or the Loan Bank, as the case may be, delivers to
the Corporation an opinion of counsel to Gotham or the Loan Bank, as the case
may be, which opinion is reasonably satisfactory in form and substance to
counsel to the Corporation, that registration is then required as a result of a
change in applicable law.
Section 5.4 REGISTRATION PROCEDURES. (a) In connection with each
registration statement prepared pursuant to this Article V, and in accordance
with the intended method or methods of distribution of the Registrable Shares
as described in such registration statement, the Corporation shall, as soon as
reasonably practicable and to the extent practicable:
(i) prepare and file with the SEC a registration statement on an
appropriate registration form of the SEC and use reasonable efforts to cause
such registration statement to become and remain effective promptly, which
registration statement shall comply as to form in all materials respects
with the requirements of the applicable form and include all financial
statements required by such form to be filed therewith; PROVIDED that before
filing a registration statement or prospectus or any amendments or
supplements thereto, the Corporation shall furnish to separate counsel
selected by each of Gotham (on its own behalf and on behalf of its
Controlled Affiliates) and the Loan Bank (on its own behalf) draft copies of
all such documents proposed to be filed at least ten (10) Business Days (in
the case of a Demand Registration) or seven (7) days (in the case of any
other registration) prior to such filing, which documents will be subject to
the reasonable review and comment of Gotham or the Loan Bank and their
respective agents and representatives and the underwriters, if any, and the
Corporation shall not file any registration statement in respect of a Demand
Registration or amendment or supplement thereto to which Gotham, the Loan
Bank or the underwriters, if any, shall reasonably object;
(ii) furnish separately to Gotham, the Loan Bank, and the underwriters,
if any, at least one conformed copy of the registration statement and each
post-effective amendment or supplement thereto (including all schedules and
exhibits but excluding all documents incorporated or deemed incorporated
therein by reference) and such number of copies of the registration
statement and each amendment or supplement thereto and the summary,
preliminary, final, amended or supplemented prospectuses included in such
registration statement as Gotham, the Loan Bank or such underwriter may
reasonably request in order to facilitate the public sale or other
disposition of the Registrable Shares being sold by Gotham, the Loan Bank
(the Corporation hereby consents to the use in accordance with the U.S.
securities laws of such registration statement (or post-effective amendment
thereto) and each such prospectus (or preliminary prospectus or supplement
thereto) by Gotham, the Loan Bank and the underwriters, if any, in
connection with the offering and sale of the Registrable Shares covered by
such registration statement or prospectus);
(iii) use reasonable efforts to keep such registration statement
effective for the earlier of (A) 60 days and (B) such time as all of the
securities covered by the registration statement have been disposed (the
"EFFECTIVE PERIOD"); prepare and file with the SEC such amendments,
post-effective amendments and supplements to the registration statement and
the prospectus as may be necessary to maintain the effectiveness of the
registration for the Effective Period and to cause the prospectus (and any
amendments or supplements thereto) to be filed;
(iv) use reasonable best efforts to register or qualify the Registrable
Shares covered by such registration statement under such other securities or
"Blue Sky" laws of such jurisdictions in the United States as are reasonably
necessary, keep such registrations or qualifications in effect for so long
as the registration statement remains in effect, and do any and all other
acts and things which may be reasonably necessary to enable Gotham, the Loan
Bank or any underwriter to consummate the disposition of the Registrable
Shares in such jurisdictions; PROVIDED, HOWEVER, that in no event shall the
Corporation be required to qualify to do business as a foreign corporation
in any jurisdiction where it would not, but for the requirements of this
subparagraph (iv), be required to be so qualified; to execute or file any
general consent to service of process under the laws of any jurisdiction; to
take any action that would subject it to service of
11
process in suits other than those arising out of the offer and sale of the
securities covered by the registration statement; or to subject itself to
taxation in any jurisdiction where it would not otherwise be obligated to do
so, but for this paragraph (iv);
(v) use reasonable best efforts to cause the Registrable Shares to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable Gotham and its
Controlled Affiliates and the Loan Bank to consummate the disposition of the
Registrable Shares;
(vi) use reasonable best efforts to cause all Registrable Shares covered
by such registration statement to be listed on the principal securities
exchange on which the Common Stock is then listed, or if no similar
securities are then so listed, cause all such Registrable Shares to be
listed on a United States national securities exchange or secure designation
of each such Registrable Share as a Nasdaq National Market "national market
system security" within the meaning of Rule 11 Aa2-1 of the Securities Act
or secure National Association of Securities Dealers Automated Quotation
authorization for such shares and, without limiting the generality of the
foregoing, use reasonable efforts to take such actions as may be required by
the Corporation as the issuer of such Registrable Shares in order to
facilitate the registration of at least one market maker as such with
respect to such shares with the National Association of Securities Dealers,
Inc.;
(vii) promptly notify Gotham, the Loan Bank and the managing underwriter
or underwriters, if any, after becoming aware thereof, (A) when the
registration statement or any related prospectus or any amendment or
supplement thereto has been filed, and, with respect to the registration
statement or any post-effective amendment, when the same has become
effective, (B) of any request by the SEC or any United States state
securities authority for amendments or supplements to the registration
statement or the related prospectus or for additional information, (C) of
the issuance by the SEC of any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings for that
purpose, (D) of the receipt by the Corporation of any notification with
respect to the suspension of the qualification of the Registrable Shares for
sale in any jurisdiction or the initiation of any proceeding for such
purpose or (E) within the Effective Period of the happening of any event or
the existence of any fact which makes any statement in the registration
statement or any post-effective amendment thereto, prospectus or any
amendment or supplement thereto, or any document incorporated therein by
reference untrue in any material respect or which requires the making of any
changes in the registration statement or post-effective amendment thereto or
any prospectus or amendment or supplement thereto so that they 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, in light of the circumstances under which they were
made, not misleading;
(viii) during the Effective Period, use its reasonable best efforts to
obtain, as promptly as practicable, the withdrawal of any order enjoining or
suspending the use or effectiveness of the registration statement or any
post-effective amendment thereto or the lifting of any suspension of the
qualification of any of the Registrable Shares for sale in any jurisdiction;
(ix) deliver promptly to Gotham, the Loan Bank and the managing
underwriters, if any, copies of all correspondence between the SEC and the
Corporation, its counsel or auditors and all memoranda relating to
discussions with the SEC or its staff with respect to the registration
statement and permit Gotham and the Loan Bank to do such investigation, with
respect to information contained in or omitted from the registration
statement as each deems reasonably necessary for the purpose of conducting
customary due diligence with respect to the Corporation, PROVIDED any such
investigation shall not interfere unreasonably with the Corporation's
business;
(x) if applicable, use reasonable efforts to provide and cause to be
maintained a transfer agent and registrar for all such Registrable Shares
covered by such registration statement not later than the effective date of
such registration statement;
(xi) cooperate with Gotham, the Loan Bank and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing such Registrable Shares to be sold
12
under the registration statement in a form eligible for deposit with the
Depository Trust Corporation not bearing any restrictive legends and not
subject to any stop transfer order with any transfer agent, and cause such
Registrable Shares to be issued in such denominations and registered in such
names as the managing underwriters, if any, may request in writing or, if
not an underwritten offering, in accordance with the instructions of Gotham,
the Loan Bank, in each case at least two (2) Business Days prior to any sale
of Registrable Shares;
(xii) in the case of an underwritten offering, use reasonable efforts to
enter into an underwriting agreement customary in form and scope for
underwritten secondary offerings of the nature contemplated by the
applicable registration statement;
(xiii) use reasonable efforts to obtain an opinion from the Corporation's
counsel and a "cold comfort" letter from the Corporation's independent
public accountants (and, if necessary, any other independent certified
public accountants of any Subsidiary of the Corporation or of any business
acquired by the Corporation for which financial statements and financial
data is, or is required to be, included in the registration statement) in
customary form and covering such matters as are customarily covered by such
opinions and "cold comfort" letters in connection with an offering of the
nature contemplated by the applicable registration statement;
(xiv) not later than the effective date of the applicable registration
statement, provide a CUSIP number for all Registrable Shares;
(xv) in connection with any underwritten offering of Registrable Shares,
provide reasonable assistance to the underwriters in the marketing of such
Registrable Shares, including by making reasonably available its employees
and personnel and by participating reasonably in road shows; and
(xvi) use reasonable efforts to provide to counsel to Gotham (and its
Controlled Affiliates), the Loan Bank and to the managing underwriters, if
any, no later than the time of filing of any document which is to be
incorporated by reference into the registration statement or prospectus
(after the initial filing of such registration statement), copies of any
such document.
(b) In the event that the Corporation would be required, pursuant to clause
(vii)(E) of Section 5.4(a) above, to notify Gotham, the Loan Bank or the
managing underwriter or underwriters, if any, of the happening of any event
specified therein, the Corporation shall, subject to the provisions of Section
5.1(b) hereof, as promptly as practicable, prepare and furnish to Gotham, the
Loan Bank and to each such underwriter a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Shares that have been registered pursuant to this
Agreement, such prospectus shall 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 the light of the circumstances
under which they were made, not misleading. Gotham and the Loan Bank shall,
upon receipt of any notice from the Corporation pursuant to Section
5.4(a)(vii)(E) hereof, use their respective reasonable best efforts to cause
any sales or placement agent or agents for the Registrable Shares and the
underwriters, if any, to forthwith discontinue disposition of the Registrable
Shares until such Person shall have received copies of such amended or
supplemented prospectus and, if so directed by the Corporation, to destroy or
to deliver to the Corporation all copies then in its possession of the
prospectus (prior to such amendment or supplement) covering such Registrable
Shares as soon as practicable after Gotham's or the Loan Bank's, as the case
may be, receipt of such notice.
(c) Each of Gotham and the Loan Bank separately shall furnish to the
Corporation in writing such information regarding Gotham or the Loan Bank, as
the case may be, and their respective intended method of distribution of the
Registrable Shares as the Corporation may from time to time reasonably request
in writing, but only to the extent that such information is relevant in order
for the Corporation to comply with its obligations under all applicable
securities and other laws and to ensure that the prospectus relating to such
Registrable Shares conforms to the applicable requirements of the Securities
Act and the rules and regulations thereunder. Each of Gotham and the Loan Bank
separately shall notify the Corporation as promptly as practicable of any
inaccuracy
13
or change in information previously furnished to the Corporation or of the
occurrence of any event, in either case as a result of which any prospectus
relating to the Registrable Shares contains or would contain an untrue
statement of a material fact or omits to state any 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, and promptly furnish
to the Corporation any additional information required to correct and update
any previously furnished information or required so that such prospectus shall
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.
(d) (i) Each of Gotham (and its Controlled Affiliates), the applicable
Founders (and their Controlled Affiliates) and the Loan Bank, as the case may
be, shall not effect any public sale or distribution of any Registrable Shares,
including any sale pursuant to Rule 144 under the Securities Act, and not
effect any such public sale or distribution of any other equity security of the
Corporation or of any security convertible into or exchangeable or exercisable
for any equity security of the Corporation (in each case, other than as part of
such underwritten public offering) during the 10 days prior to, and during the
60 day period (or such longer period as Gotham, the applicable Founders and the
Loan Bank agree with the underwriter of such offering) beginning on, the
consummation of any underwritten public offering of the Registrable Shares
covered by a registration statement referred to in Section 5.2, if any of and
to the extent that Registrable Shares (or any other equity security of the
Corporation or any security convertible into or exchangeable or exercisable for
any equity security of the Corporation owned by any of the foregoing) of Gotham
(and/or its Controlled Affiliates'), the Founders (and/or their Controlled
Affiliates) or the Loan Bank, as the case may be, are being sold thereunder.
(ii) The Corporation hereby agrees that if it receives a request pursuant to
Section 5.1 or 5.2 for registration of Registrable Shares in an underwritten
offering, and if the registration made pursuant to that request is not
withdrawn or abandoned, the Corporation shall not Transfer or otherwise dispose
of any Common Stock, any other equity security of the Corporation or any
security convertible into or exchangeable for any equity security of the
Corporation until the earlier of (A) 60 days after the effective date of such
registration statement and (B) such time as all of the Registrable Shares
covered by such registration statement have been distributed, other than (x) as
part of such underwritten offering, (y) pursuant to a registration statement on
Form S-8 or Form S-4 under the Securities Act or any successor or similar form
or (z) in one or more private transactions that would not interfere with the
method of distribution contemplated by such registration statement.
(e) In the case of any registration under Section 5.1 pursuant to an
underwritten offering, or in the case of a registration under Section 5.2 if
the Corporation has entered into an underwriting agreement in connection
therewith, all shares of Common Stock to be included in such registration shall
be subject to the applicable underwriting agreement and no Person may
participate in such registration unless such Person agrees to sell such
Person's securities on the basis provided therein and completes and executes
all questionnaires, indemnities, underwriting agreements and other documents
(other than powers of attorney) which must be executed in connection therewith,
and provides such other information to the Corporation or the underwriter as
may be reasonably requested to register such Person's Common Stock.
Section 5.5 REGISTRATION EXPENSES. In the case of any Demand Registration
by Gotham (on behalf of itself or its Affiliates) and related Piggy-Back
Request by Founders, the Corporation shall bear all costs, fees and expenses,
including, agent fees and commissions, underwriting discounts and commissions,
and fees and disbursements of counsel and accountants, in connection with any
registration of any Registrable Shares pursuant to Article V. Notwithstanding
the foregoing, the Loan Bank shall bear its proportionate share of costs, fees
and expenses, including, agent fees and commissions, underwriting discounts and
commissions, and fees and disbursements of counsel and accountants, in
connection with any registration of any Registrable Shares pursuant to Article
V in which Gotham or the Founders also participate, and the full amount of such
costs, fees and expenses in connection with any other registration of any
Registrable Shares pursuant to Article V.
14
Section 5.6 INDEMNIFICATION; CONTRIBUTION. (a) The Corporation shall, and
it hereby agrees to, indemnify and hold harmless Gotham and its Controlled
Affiliates, the Loan Bank and their respective directors, officers, employees
and Controlling Persons, if any, and each underwriter, its partners, directors,
officers, employees and controlling Persons, if any, in any offering or sale of
the Registrable Shares, against any losses, claims, damages or liabilities,
actions or proceedings (whether commenced or threatened) in respect thereof and
expenses (including attorneys' fees) (collectively, "CLAIMS") to which each
such indemnified party may become subject, insofar as such Claims (including
any amounts paid in settlement effected with the consent of the Corporation as
provided herein), or actions or proceedings in respect thereof, arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any registration statement, or any preliminary or final
prospectus contained therein, or any amendment or supplement thereto, or any
document incorporated by reference therein, or arise out of or are based upon
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and the Corporation
shall, and it hereby agrees to, reimburse periodically Gotham and its
Controlled Affiliates, the Loan Bank or any such underwriter for any legal or
other out-of-pocket expenses reasonably incurred by them in connection with
investigating or defending any such Claims; PROVIDED, HOWEVER, that the
Corporation shall not be liable to any such Person in any such case to the
extent that any such Claims arise out of or are based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement, or preliminary or final prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with information
furnished to the Corporation by such Person or any underwriter or
representative of such Person expressly for use therein, or by such Person's
failure to furnish the Corporation, promptly upon request, with the information
with respect to such Person, or any underwriter or representative of such
Person, or such Person's intended method of distribution, that is the subject
of the untrue statement or omission or if the Corporation shall sustain the
burden of proving that such Person or such underwriter sold securities to the
Person alleging such Claims without sending or giving, at or prior to the
written confirmation of such sale, a copy of the applicable prospectus
(excluding any documents incorporated by reference therein) or of the
applicable prospectus, as then amended or supplemented (excluding any documents
incorporated by reference therein), if the Corporation had previously furnished
copies thereof to Gotham, the Loan Bank or such underwriter, and such
prospectus corrected such untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement.
(b) Each of Gotham, the applicable Founders and the Loan Bank shall
separately (i.e., not on a joint or severable basis) (i) indemnify and hold
harmless the Corporation, its directors, officers, employees, Affiliates and
Controlling Persons, if any, and each underwriter, its partners, officers,
directors, employees and Controlling Persons, if any, in any offering or sale
of Registrable Shares, against any Claims to which each such indemnified party
may become subject, and only to the extent that such Claims (including any
amounts paid in settlement as provided herein), or actions or proceedings in
respect thereof, arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
or any preliminary or final prospectus contained therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, or arise
out of or are based upon 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, in each case only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Corporation by Gotham, the applicable Founders or the Loan Bank, as the case
may be, expressly for use therein, and (ii) reimburse the Corporation for any
legal or other out-of-pocket expenses reasonably incurred by the Corporation in
connection with investigating or defending any such Claim.
(c) Promptly after receipt by an indemnified party under Section 5.6(a) or
Section 5.6(b) of written notice of the commencement of any action or
proceeding for which indemnification under Section 5.6(a) or Section 5.6(b) may
be requested, such indemnified party shall notify such indemnifying party in
writing of the commencement of such action or proceeding; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party in respect of such action or proceeding
hereunder unless the indemnifying party was materially prejudiced by such
failure of the indemnified party to
15
give such notice, and in no event shall such omission relieve the indemnifying
party from any other liability it may have to such indemnified party. In case
any such action or proceeding shall be brought against any indemnified party
and it shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall determine, jointly with any other indemnifying party similarly
notified, to as sume the defense thereof, with counsel reasonably satisfactory
to such indemnified party, and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any legal
or any other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that (i) if the indemnifying party fails to
take reasonable steps necessary to defend diligently the action or proceeding
within 20 days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so; (ii) if such indemnified
party who is a defendant in any action or proceeding which is also brought
against the indemnifying party reasonably shall have concluded that there may
be one or more legal defenses available to such indemnified party which are not
available to the indemnifying party; or (iii) if representation of both parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct, then, in any such case, the indemnified party shall have
the right to assume or continue its own defense as set forth above (but with no
more than one firm of counsel for all indemnified parties in each jurisdiction)
and the indemnifying party shall be liable for any expenses therefor (including
any such reasonable counsel's fees). If the indemnifying party is not entitled
to, or elects not to, assume the defense of a claim, it will not be obligated
to pay the fees and expenses of more than one counsel for each indemnified
party with respect to such claim. The indemnifying party will not be subject to
any liability for any settlement made without its consent, which consent shall
not be unreasonably withheld or delayed. No indemnifying party shall, without
the prior written consent of the indemnified party, compromise or consent to
entry of any judgment or enter into any settlement agreement with respect to
any action or proceeding in respect of which indemnification is sought under
Section 5.6(a) or Section 5.6(b) (whether or not the indemnified party is an
actual or potential party thereto), unless such compromise, consent or
settlement includes an unconditional release of the indemnified party from all
liability in respect of such claim or litigation, does not subject the
indemnified party to any material injunctive relief or other material equitable
remedy and does not include a statement or admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.
(d) Gotham, the applicable Founders, the Loan Bank and the Corporation agree
that if, for any reason, the indemnification provisions contemplated by
Sections 5.6(a) or 5.6(b) hereof are unavailable to or are insufficient to hold
harmless an indemnified party in respect of any Claims referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such Claims in such proportion as is
appropriate to reflect the relative fault of, the indemnifying party, on the
one hand, and the indemnified party, on the other hand, with respect to such
offering of securities. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. If, however, the allocation in the second preceding
sentence is not permitted by applicable law, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative faults, but also
the relative benefits of the indemnifying party and the indemnified party, as
well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 5.6(d) were to be determined by pro rata allocation or by any other
method of allocation which does not take into account the equitable
considerations referred to in the preceding sentences of this Section 5.6(d).
The amount paid or payable by an indemnified party as a result of the Claims
referred to above shall be deemed to include (subject to the limitations set
forth in Section 5.6(c) hereof) any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action, proceeding or claim. 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.
16
ARTICLE VI
TERMINATION
Section 6.1 TERMINATION. (a) With respect to any obligations of Gotham and
its Controlled Affiliates related hereto, this Agreement shall terminate and
any obligations of Gotham (and, to the extent applicable, the obligations of
any of its Controlled Affiliates) shall cease in their entirety, become void
and have no effect immediately after Gotham's Total Corporation Interest is
less than 11.25% of the issued and outstanding Common Stock; PROVIDED, HOWEVER,
that the Gotham Demand Right (and the related Founder's rights under Section
5.2) shall persist until Gotham's Total Corporation Interests is less than 5%
of the issued and outstanding Common Stock.
(b) Upon termination in accordance with this Section 6.1, this Agreement
shall become void and have no effect; PROVIDED, HOWEVER, that such termination
shall not relieve any Party of any liability for any breach of this Agreement
that occurred prior to such termination.
ARTICLE VII
MISCELLANEOUS
Section 7.1 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
of the Parties and delivered (including by facsimile) to the other Parties.
Section 7.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL
RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY
WITHIN SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH
STATE.
Section 7.3 JURISDICTION AND FORUM. Each Party hereto (a) consents to
submit itself to the personal jurisdiction of the Court of Chancery or other
Courts of the State of Delaware in the event any dispute arises out of this
Agreement or the transactions contemplated by this Agreement; (b) agrees that
it will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court; (c) agrees that it will not bring
any action relating to this Agreement or the transactions contemplated by this
Agreement in any court other than the Court of Chancery or other Courts of the
State of Delaware, and each of the parties irrevocably waives the right to
trial by jury; (d) agrees to waive any bonding requirement under any applicable
law, in the case any other party seeks to enforce the terms by way of equitable
relief; (e) irrevocably consents to service of process by first class certified
mail, return receipt requested, postage prepaid, to the address at which such
Party is to receive notice; and (f) to the extent that any Party has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, irrevocably waives such immunity in respect of its obligations
with respect to this Agreement.
Section 7.4 ENTIRE AGREEMENT. This Agreement and the Partnership Agreement
constitute the entire agreement between the Parties with respect to the subject
matter hereof and there are no agreements, understandings, representations or
warranties between the parties other than those set forth or referred to
herein. This Agreement is not intended to confer upon any person not a Party
hereto any rights or remedies hereunder.
Section 7.5 EXPENSES. Except as set forth in this Agreement, all legal and
other costs and expenses incurred in connection with this Agreement and the
transactions contemplated by this Agreement shall be paid by the Party
incurring such costs and expenses; PROVIDED, HOWEVER, that in the event that
any dispute arises out of this Agreement or the transactions contemplated by
this Agreement, the non-prevailing Party in such dispute
17
shall pay all reasonable legal fees and other reasonable costs and expenses
incurred by the prevailing Party in connection with investigating, prosecuting
and/or defending such dispute.
Section 7.6 NOTICES. All notices and other communications to be given to
any Party hereunder shall be sufficiently given for all purposes hereunder if
in writing and delivered by hand, courier or overnight delivery service or
three days after being mailed by certified or registered mail, return receipt
requested, with appropriate postage prepaid, or when received in the form of a
telegram or facsimile and shall be directed, if to a Party hereunder, to the
address or facsimile number set forth below (or at such other address or
facsimile number as such Party shall designate by like notice):
(a) If to Gotham:
Gotham Partners, L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.,
General Counsel
Facsimile: (000) 000-0000
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
(b) If to the Partnership:
Gotham Golf Partners, L.P.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
With a copy to:
Xxxx and Xxxx, LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, Xxxxxxxx xx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
And to:
Gotham Partners, L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.,
General Counsel
Facsimile: (000) 000-0000
18
If to FGA or FGPI:
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxx and Xxxx, LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, Xxxxxxxx xx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(c) If to the Founders:
To the address and fax set forth on EXHIBIT A
With a copy to:
Xxxx and Xxxx, LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, Xxxxxxxx xx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(d) If to the Corporation:
Gotham Golf Corp.
[insert address]
With a copy to:
[Insert name and address]
SECTION 7.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Parties and their respective permitted
successors and permitted assigns; PROVIDED, HOWEVER, that no Party will assign
its rights or delegate any or all of its obligations under this Agreement
without the express prior written consent of each other Party.
SECTION 7.8 HEADINGS; DEFINITIONS. The section and article headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement. All references
to Sections or Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated. All capitalized terms defined herein are
equally applicable to both the singular and plural forms of such terms.
SECTION 7.9 AMENDMENTS AND WAIVERS. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by all
Parties. Any Party may, only by an instrument in writing,
19
waive compliance by the other Parties with any term or provision of this
Agreement on the part of such other Parties to be performed or complied with.
The waiver by any Party of a breach of any term or provision of this Agreement
shall not be construed as a waiver of any subsequent breach. Except as
otherwise expressly provided herein, no failure to exercise, delay in
exercising or single or partial exercise of any right, power or remedy by any
Party, and no course of dealing between the Parties, shall constitute a waiver
of any such right, power or remedy.
SECTION 7.10 SEVERABILITY. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions of this Agreement shall not be affected thereby, and there
shall be deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
SECTION 7.11 INTERPRETATION. In the event an ambiguity or question of
intent or interpretation arises with respect to this Agreement, this Agreement
shall be construed as if it was drafted jointly by the Parties, and no
presumption or burden of proof shall arise favoring or disfavoring any Party by
virtue of the authorship of any provisions of this Agreement.
SECTION 7.12 SPECIFIC PERFORMANCE. The Parties agree that irreparable
damage would occur in the event that any Party fails to consummate the
transactions contemplated by this Agreement in accordance with the terms of
this Agreement and that the Parties shall be entitled to specific performance
in such event, in addition to any other remedy at law or in equity, including
temporary restraining orders or temporary or permanent injunctions.
SECTION 7.13 NO THIRD-PARTY BENEFICIARIES. Neither this Agreement nor any
provision hereof is intended to confer upon any person other than the parties
hereto any rights or remedies hereunder except for Indemnitees that are not
parties hereto.
20
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
duly executed and delivered on the date first set forth above.
GOTHAM GOLF CORP.
By:________________________________
Xxxxxxx X. Xxxxxx
Chairman, Board of Directors
GOTHAM GOLF, LLC
By:________________________________
[name]
[title]
GOTHAM PARTNERS, L.P.
By: Section H Partners, L.P.,
its general partner
By: Karenina Corporation,
a general partner of Section H
Partners, L.P.
By:________________________________
Xxxxxxx X. Xxxxxx
President
FLORIDA GOLF ASSOCIATES, L.P.
By: GGP, Inc.,
its general partner
By:________________________________
Xxxxxxx X. Xxxxxxx
President
21
FLORIDA GOLF PROPERTIES, INC.
By:________________________________
Xxxx Xxxxxxxxxxx
President
_____________________________________
R. Xxxxxx Xxxx
_____________________________________
Xxxxxxx X. Xxxxxxx
_____________________________________
Xxxx Xxxxxxxxxxx
_____________________________________
Xxxxxxx X. Xxxxx
_____________________________________
Xxxxx XxXxx
_____________________________________
Xxxxxx Bonus
_____________________________________
Xxxxxx Xxxxxxxxx
_____________________________________
Xxxxxxx X. Xxxxx
GOTHAM PARTNERS III, L.P.
By: Section H Partners, L.P.,
its general partner
By: Karenina Corporation,
a general partner of Section H
Partners, L.P.
By:________________________________
Xxxxxxx X. Xxxxxx
President
SYDNE XXXXXXXX XXXXXXX TRUST
By:________________________________
Xxxxx X. Xxxxxxx, Trustee
22
XXXXXXX XXXXXXXXX XXXXXXX TRUST
By:________________________________
Xxxxx X. Xxxxxxx, Trustee
XXXXXXX XXXX XXXXXXX TRUST
By:________________________________
Xxxxx X. Xxxxxxx, Trustee
XXXXXXX X. XXXXXXX 1996 TRUST
By:________________________________
Xxxxxxx X. Xxxxxxx, Trustee
XXXXX XXXX XXXXXXX 1997 TRUST
By:________________________________
Xxxxxxx X. Xxxxxxx, Trustee
23
EXHIBIT A
FOUNDERS LIST
Xxxx Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxx
R. Xxxxxx Xxxx
24
EXHIBIT B
ADOPTION AGREEMENT
This Adoption Agreement ("ADOPTION") is executed pursuant to the terms of
the Equityholders Agreement by and among by and among Gotham Golf Corp., a
Delaware corporation, Gotham Golf, LLC, a Delaware limited liability company,
Gotham Partners, L.P., a Delaware limited partnership, Florida Golf Associates,
L.P., a Virginia limited partnership, Florida Golf Properties, Inc., a Virginia
corporation, Florida Golf Properties, L.P., a Florida limited partnership and
certain other persons described therein, dated as of [ ], 2002, as
amended to date, a copy of which is attached hereto (the "EQUITYHOLDERS
AGREEMENT"), by the transferee ("TRANSFEREE") executing this Adoption. By the
execution of this Adoption, the Transferee agrees as follows:
1. ACKNOWLEDGMENT. Transferee acknowledges that Transferee is acquiring
certain [describe securities acquired] (the "SUBJECT SECURITIES") from
[identity of Transferor] (the "TRANSFEROR"), pursuant to clause (1) of Section
4.1(a) of the Equityholders Agreement and subject to the terms and conditions
of the Equityholders Agreement. In addition, Transferee (i) acknowledges that
the Subject Securities may be encumbered by a security interest granted to the
Partnership, the General Partner or the Corporation and (ii) agrees that the
Subject Securities shall remain subject to any such security interest unless
otherwise released by the Partnership, the General Partner or the Corporation,
as applicable. Capitalized terms used herein without definition are defined in
the Equityholders Agreement.
2. AGREEMENT. Transferee (i) agrees that the Subject Securities acquired by
Transferee shall be bound by and subject to the terms of the Equityholders
Agreement in the same capacity as the Transferor was bound by such agreement
and (ii) hereby joins in, and agrees to be bound by, the Equityholders
Agreement in that same capacity with the same force and effect as if it were
originally a party thereto.
3. NOTICE. Any notice required by the Equityholders Agreement shall be
given to Transferee at the address listed beside Transferee's signature below.
EXECUTED AND DATED on this ____ day of ________ , ____ .
TRANSFEREE:
By:
-----------------------------------
NOTICE:
Address:
--------------------------------------
--------------------------------------
Telecopy:
------------------------------
25
EXHIBIT C
ASSUMPTION AGREEMENT
This Assumption Agreement ("ASSUMPTION") is executed pursuant to the terms
of the Equityholders Agreement by and among by and among Gotham Golf Corp., a
Delaware corporation, Gotham Golf, LLC, a Delaware limited liability company,
Gotham Partners, L.P., a Delaware limited partnership, Florida Golf Associates,
L.P., a Virginia limited partnership, Florida Golf Properties, Inc., a Virginia
corporation, Florida Golf Properties, L.P., a Florida limited partnership and
certain other persons described therein, dated as of [ ], 2002, as
amended to date, a copy of which is attached hereto (the "EQUITYHOLDERS
AGREEMENT"), by the transferee ("TRANSFEREE") executing this Assumption. By the
execution of this Assumption, the Transferee agrees as follows:
1. ACKNOWLEDGMENT. Transferee acknowledges that Transferee is acquiring
certain [describe securities acquired] (the "SUBJECT SECURITIES") from
[identity of Transferor] (the "TRANSFEROR"), pursuant to clauses (3), (4) and
(5) of Section 4.1(a) of the Equityholders Agreement and subject to the terms
and conditions of the Equityholders Agreement. In addition, Transferee (i)
acknowledges that the Subject Securities may be encumbered by a security
interest granted to the Partnership, the General Partner or the Corporation and
(ii) agrees that the Subject Securities shall remain subject to any such
security interest unless otherwise released by the Partnership, the General
Partner or the Corporation, as applicable. Capitalized terms used herein
without definition are defined in the Equityholders Agreement.
2. AGREEMENT. Transferee agrees that it shall not Transfer the Subject
Securities (including, for the purposes hereof, pledging the Subject Securities
as collateral for loans), unless otherwise agreed to in writing by the General
Partner, acting in its sole discretion. The foregoing notwithstanding, if and
to the extent that Transferee has been admitted as a limited partner of the
Partnership, nothing contained herein shall limit such Transferee's ability to
exercise his or her rights pursuant to Section 8.6 of the Partnership Agreement.
3. NOTICE. Any notice required by the Equityholders Agreement shall be
given to Transferee at the address listed beside Transferee's signature below.
EXECUTED AND DATED on this ____ day of ________ , ____ .
TRANSFEREE:
By:
-----------------------------------
NOTICE:
Address:
--------------------------------------
--------------------------------------
Telecopy:
-------------------------------
26
