AMENDMENT OF AND JOINDER TO CLASS A COMMON STOCK REGISTRATION RIGHTS AGREEMENT
Exhibit 10.31
Execution Version
AMENDMENT OF AND JOINDER TO
CLASS A COMMON STOCK
REGISTRATION RIGHTS AGREEMENT
This amendment and joinder (this “Amendment and Joinder”), dated as of October 12, 2012, by and between ColFin WLH Land Acquisitions, LLC, a Delaware limited liability company (“Colony”), and Xxxxxxx Xxxx Homes, a Delaware corporation (the “Company”).
WHEREAS, a Class A Common Stock Registration Rights Agreement was entered into on February 25, 2012 by and among, inter alia, certain of Holders of Company securities (the “Other Holders”) and the Company (the “Registration Rights Agreement”);
WHEREAS, the Company, Xxxxxxx Xxxx Homes, Inc., a California corporation and wholly-owned subsidiary of the Company, and Colony entered into a Purchase and Sale Agreement and Joint Escrow Instructions, dated June 28, 2012, pursuant to which, among other things, Colony acquired certain Class A Shares (the “New Party Class A Shares”) from the Company;
WHEREAS, the Company and Colony desire to amend the Registration Rights Agreement to allow for the inclusion of the New Party Class A Shares in the definition of Registrable Securities so that Colony may become a party to the Registration Rights Agreement by execution of this Amendment and Joinder; and
WHEREAS, this Amendment and Joinder is duly made pursuant to Section 11(g) of the Registration Rights Agreement by the Company with the consent of Holders of a majority of the Registrable Securities outstanding as of the date hereof.
NOW IT IS AGREED as follows:
1. In this Amendment and Joinder, unless the context otherwise requires, words and expressions respectively defined or construed in the Registration Rights Agreement shall have the same meanings when used or referred to herein.
2. The definition of “Registrable Securities” in Section 1 of the Registration Rights Agreement is hereby amended and restated in its entirety to read as follows:
“Registrable Securities” means (i) the Class A Shares issued to the Holders pursuant to the Plan, (ii) the Class A Shares issued to ColFin WLH Land Acquisitions, LLC, a Delaware limited liability company (“Colony”), pursuant to that certain Purchase and Sale Agreement and Joint Escrow Instructions, dated June 28, 2012, by and between Colony, the Company and Xxxxxxx Xxxx Homes, Inc., a California corporation and wholly-owned subsidiary of the Company, and (iii) any additional Class A Shares issued or distributed by way of a dividend, stock split or other distribution in respect of such Class A Shares. As to any particular Registrable Securities, once issued, such securities shall cease to be Registrable Securities when (a) a Registration Statement with respect to the sale of such Registrable Securities shall have been
declared effective under the Securities Act by the SEC and such Registrable Securities shall have been disposed of pursuant to such effective Registration Statement, (b) they shall have been distributed pursuant to Rule 144 under the Securities Act and are no longer “restricted securities”, (c) they shall have ceased to be outstanding, or (d) the entire amount of the Registrable Securities held by any Holder may be sold by such Holder in a single sale without, in the opinion of counsel reasonably satisfactory to the Company and such Holder, any limitation as to volume or manner of sale requirements pursuant to Rule 144 promulgated under the Securities Act and the Company removes any restrictive legend borne by the Registrable Securities.”
3. Except as modified by this Amendment and Joinder, the Registration Rights Agreement shall remain in full force and effect. Nothing herein shall be held to alter, vary or otherwise affect the terms, conditions and provisions of the Registration Rights Agreement, other than as expressly contemplated herein.
4. Colony hereby accedes to and ratifies the Registration Rights Agreement and covenants and agrees with the Company and the Other Holders to be bound by the terms of the Registration Rights Agreement as a “Holder” and to duly and punctually perform and discharge all liabilities and obligations whatsoever from time to time to be performed or discharged by it under or by virtue of the Registration Rights Agreement in all respects as if named as a party therein.
5. The Company covenants and agrees that Colony shall be entitled to all the benefits of the terms and conditions of the Registration Rights Agreement to the extent and effect that Colony shall be deemed, with effect from the date on which Colony executes this Amendment and Joinder, to be a party to the Registration Rights Agreement as a “Holder.”
6. This Amendment and Joinder shall hereafter be read and construed in conjunction and as one document with the Registration Rights Agreement and references in the Registration Rights Agreement to “the Agreement” or “this Agreement,” and references in all other instruments and documents executed thereunder or pursuant thereto to the Registration Rights Agreement, shall for all purposes refer to the Registration Rights Agreement incorporating and as supplemented by this Amendment and Joinder.
7. This Amendment and Joinder may be executed in any number of counterparts and signatures may be delivered by facsimile or other electronic transmission (including via .pdf or .tif) and each of such counterparts shall for all purposes be deemed an original, and all such counterparts shall together constitute one and the same instrument.
8. If any provision of this Amendment and Joinder becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Amendment and Joinder and the balance of this Amendment and Joinder shall be enforceable in accordance with its terms.
9. The address of Colony for purposes of all notices under the Registration Rights Agreement is:
Notices to Colony:
ColFin WLH Land Acquisitions, LLC
0000 Xxxxxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Hushmand Sohaili, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
[Remainder of Page Intentionally Left Blank]
Execution Version
IN WITNESS WHEREOF, the undersigned has caused this Amendment and Joinder to be executed and delivered by its authorized representative as of the date first above written.
| COLONY: | ||
| By: | COLFIN WLH LAND ACQUISITIONS, LLC, a Delaware limited liability company | |
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: Xxxx M/ Xxxxxxxx | ||
| Title: Vice President | ||
| THE COMPANY: | ||
| By: | XXXXXXX XXXX HOMES, a Delaware corporation | |
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | ||
| Title: Executive Vice President | ||
[Signature Page to Amendment of and Joinder to Registration Rights Agreement]
