1
EXHIBIT 10.132
================================================================================
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
XXXXXX XXXXXXX REAL ESTATE FUND III, L.P.,
XXXXXX XXXXXXX REAL ESTATE INVESTORS III, L.P.,
MSP REAL ESTATE FUND, L.P.,
MSREF III SPECIAL FUND, L.P.
AND
BLUEGREEN CORPORATION
DATED AUGUST 14, 1998
================================================================================
2
TABLE OF CONTENTS
PAGE
----
1. Definitions..............................................................................................1
2. Shelf Registration of Resales............................................................................3
3. Demand Registration......................................................................................5
4. Piggyback Registration...................................................................................7
5. Registration of Securities Other than Registrable Securities.............................................9
6. "Market Stand-Off" Agreement.............................................................................9
7. Registration Procedures..................................................................................9
8. Registration Expenses...................................................................................14
9. Indemnification.........................................................................................15
10. Rule 144................................................................................................17
11. Underwritten Registrations..............................................................................18
12. Miscellaneous...........................................................................................18
i
3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made and
entered into as of August 14, 1998, by and among Xxxxxx Xxxxxxx Real Estate Fund
III, L.P., a Delaware limited partnership, Xxxxxx Xxxxxxx Real Estate Investors
III, L.P., a Delaware limited partnership, MSP Real Estate Fund, L.P., a
Delaware limited partnership and MSREF III Special Fund, L.P., a Delaware
limited partnership (collectively, "MSREF") and Bluegreen Corporation, a
Massachusetts corporation (the "Company").
RECITALS
WHEREAS, pursuant to the Securities Purchase Agreement dated August 14,
1998, by and among the Company and MSREF, MSREF has agreed to purchase shares of
the Company's Common Stock in an aggregate amount of up to $50,000,000; and
WHEREAS, to induce MSREF to purchase the shares of Common Stock to be
purchased thereunder, the Company has agreed to provide the registration rights
set forth in this Agreement; and
WHEREAS, the execution and delivery by the Company of this Agreement is
a condition to the obligation of MSREF to purchase any shares of Common Stock as
set forth in Section 5.01 of the Securities Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the respective meanings set forth below:
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York or Boca Raton, Florida are
authorized or obligated to close.
"CHANGE OF CONTROL" has the meaning in the Securities Purchase
Agreement.
"COMMON STOCK" means the Common Stock, par value $.01 per share, of the
Company.
"DEMAND NOTICE" has the meaning set forth in Section 3(a) hereto.
"DEMAND REGISTRATION" has the meaning set forth in Section 3(a) hereto.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8(c) hereto.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8(c) hereto.
4
"LOCK-UP PERIOD" means the period commencing on the date hereof and
continuing until the earlier to occur of (i) the second anniversary of the date
hereof, or (ii) six months following the first date on which all shares of
Common Stock to be sold and issued to Purchasers under Sections 2.01 and 2.03 of
the Securities Purchase Agreement shall have been acquired by Purchasers, but
not earlier than the 18th month anniversary of the date hereof.
"LOSSES" has the meaning set forth in Section 8(a) hereto.
"NOTICE" has the meaning set forth in Section 3(b)(iii) hereto.
"PERMITTED TRANSFEREE" has the meaning set forth in the Securities
Purchase Agreement.
"PERSON" means an individual, corporation, partnership, association,
trust, limited liability company, joint venture or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PIGGYBACK REGISTRATION" has the meaning set forth in Section 4(a)
hereto.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
materials incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"PURCHASERS" means any Person comprising MSREF, any Permitted
Transferee, any bona fide financial institution to which any Purchaser has
transferred (including upon foreclosure of a pledge) shares of Common Stock in
accordance with Section 4.07 of the Securities Purchase Agreement for the
purpose of securing bona fide indebtedness of such Purchaser, and not more than
two other Persons to whom Purchaser or any Permitted Transferee has assigned its
rights hereunder and transferred shares of Common Stock if such Persons are
subject to the volume limitations and manner of sale provisions of Rule 144.
"REGISTRABLE SECURITIES" means (i) all the shares of Common Stock
beneficially owned by Purchasers as of the date hereof which have been issued to
Purchasers pursuant to the Securities Purchase Agreement (ii) all shares of
Common Stock which Purchasers have the obligation or right to purchase pursuant
to the Securities Purchase Agreement, and (iii) all of the shares of Common
Stock issued pursuant to the Securities Purchase Agreement and transferred to
Purchasers as permitted by the Securities Purchase Agreement and this Agreement,
until, in the case of any such security, (x) such security is effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering it, (y) such security may be disposed of by
Purchasers in accordance with Rule 144(k) (or any successor provision to such
Rule) under the Securities Act as confirmed in a written opinion of counsel to
the Company addressed to the Purchaser holding such securities, or (z) is sold
or is eligible for sale in the opinion of counsel reasonably satisfactory to the
Company and the Purchasers without
2
5
registration under the Securities Act and without any restrictions and in a
manner in which all transfer restrictions and restrictive legends with respect
thereto are or may be removed upon consummation of such sale.
"REGISTRATION STATEMENT" means any registration statement of the
Company under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
all amendments and supplements to such registration statement (including
post-effective amendments), all exhibits and all materials incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"REGISTRATION SUSPENSION PERIOD" has the meaning set forth in Section
2(b) hereto.
"RULE 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and all
rules and regulations promulgated thereunder, as in effect from time to time.
"SECURITIES PURCHASE AGREEMENT" means that Securities Purchase
Agreement dated as of August 14, 1998 among MSREF and the Company.
"SPECIAL COUNSEL" has the meaning set forth in Section 6(a) hereto.
"SUBSIDIARY" means, with respect to any corporation (the "parent") any
other Person of which 50% or more of the shares of the voting stock are owned or
controlled, directly or indirectly, by the parent or one or more Subsidiaries of
the parent, or by the parent and one or more Subsidiaries.
"SUSPENSION NOTICE" has the meaning set forth in Section 2(b) hereto.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" means a
registration under the Securities Act in which securities of the Company are
sold to an underwriter or group of underwriters for reoffering to the public.
2. SHELF REGISTRATION OF RESALES.
(a) OBLIGATION TO FILE AND MAINTAIN. The Company will use its
reasonable best efforts to file with the SEC and cause to become effective no
later than the expiration of the Lock-Up Period or within 45 days following (i)
the occurrence of a Change of Control or (ii) receipt of a notice from the
Company of the execution by the Company of a definitive agreement with a Person
which will result in a Change of Control, a Registration Statement under the
Securities Act for the offering on a continuous or delayed basis in the future
of all of the Registrable Securities (the "Shelf Registration"). The Shelf
Registration shall be on an appropriate form and the Shelf Registration and any
form of prospectus included therein or prospectus supplement
3
6
relating thereto shall reflect such plan of distribution or method of sale as
Purchasers may from time to time notify the Company, including the sale of some
or all of the Registrable Securities in a public offering. The Company shall use
its reasonable best efforts to keep the Shelf Registration continuously
effective for the period beginning on the date on which the Shelf Registration
is declared effective and ending on the first date that there are no Registrable
Securities (provided that the Company may terminate the effectiveness of a Shelf
Registration on the fourth anniversary of the date of effectiveness thereof plus
a number of days equal to the number of days in all Registration Suspension
Periods relating to such Shelf Registration). During the period during which the
Shelf Registration is effective, the Company shall supplement or make amendments
to the Shelf Registration, if required by the Securities Act or if reasonably
requested by Purchasers or an underwriter of Registrable Securities, including
to reflect any specific plan of distribution or method of sale, and shall use
its reasonable best efforts to have such supplements and amendments declared
effective, if required, as soon as practicable after filing.
(b) BLACK-OUT PERIODS OF PURCHASERS. Notwithstanding anything herein to
the contrary, (i) the Company shall have the right, by written notice to
Purchasers (the "Suspension Notice"), exercisable on not more than one occasion
during any one-year period, from time to time, to require Purchasers not to sell
under the Shelf Registration or to suspend the effectiveness thereof during the
period starting with the date 30 days prior to the Company's good faith
estimate, as certified in writing by an executive officer of the Company to
Purchasers, of the proposed date of filing of a Registration Statement or a
preliminary prospectus supplement relating to an existing shelf registration
statement, in either case, pertaining to an Underwritten Offering of equity
securities of the Company for the account of the Company, and ending on the date
90 days following the effective date of such Registration Statement or the date
of filing of such prospectus supplement, and (ii) the Company shall be entitled
to postpone or suspend (but not for a period exceeding 60 days per transaction)
the filing or effectiveness of a Registration Statement otherwise required to be
prepared and filed by it pursuant to this Section 2 on not more than one
occasion during any 12-month period if the Company determines, in its good faith
judgment, that such registration and offering or continued effectiveness would
interfere with any material financing, acquisition, disposition, corporate
reorganization or other material transaction involving the Company or any of its
subsidiaries or any preexisting negotiations, discussions or pending proposal
with respect to any such material transactions or public disclosure thereof
would be required prior to the time such disclosure might otherwise be required,
or when the Company is in possession of material information that it deems
advisable not to disclose in a Registration Statement (either, the "Registration
Suspension Period").
(c) SHELF REGISTRATIONS. A Shelf Registration under this Section 2
shall not be deemed to have been effected unless such registration becomes
effective pursuant to the Securities Act and is kept effective for a period of
at least four years, PROVIDED, HOWEVER, that no Registration Suspension Periods
or periods during which there is any stop order, injunction or other order of
the SEC or other governmental authority for any reason other than an act or
omission or Purchasers, shall count towards such four-year period.
(d) NOTICE. The Company shall give Purchasers prompt notice in the
event that the Company has suspended sales of Registrable Securities under
Section 2(b).
4
7
3. DEMAND REGISTRATION.
(a) REQUESTS FOR REGISTRATION. At any time and from time to time after
the earlier of (i) expiration of the Lock-Up Period, (ii) the occurrence of a
Change of Control or (iii) receipt of a notice from the Company of the execution
by the Company of a definitive agreement with a Person which will result in a
Change of Control, each Purchaser shall have the right by written notice
delivered to the Company (a "Demand Notice") to require the Company to register
the number of Registrable Securities requested to be so registered in accordance
with the provisions of the Securities Act (a "Demand Registration"), but in no
event fewer than would result in $10,000,000 of Registrable Securities being
registered or all Registrable Securities owned by the Purchaser delivering the
Demand Notice if it owns less than $10,000,000 of Registrable Securities;
PROVIDED, HOWEVER, that no Purchaser may deliver a Demand Notice until 120 days
after the effective date of the immediately preceding Demand Registration and no
Purchaser may deliver a Demand Notice within 180 days after the effective date
of a registration statement filed by the Company covering a firm commitment
underwritten public offering (PROVIDED THAT the Purchaser had the right to
participate in such offering under Section 4). The number of Demand
Registrations pursuant to this Section 3(a) will not exceed two; PROVIDED,
HOWEVER, that in determining the number of Demand Registrations to which
Purchasers are entitled there will be excluded (i) any Demand Registration that
is an Underwritten Registration if the managing underwriter or underwriters have
advised the Purchasers whose Registrable Securities are being registered in the
Demand Registration that the total number of Registrable Securities requested to
be included in the Demand Registration exceeds by more than 25% the number of
Registrable Securities that can be sold in that offering in accordance with the
provisions of this Agreement without materially and adversely affecting the
success of such offering, and (ii) any Demand Registration that does not become
effective or is not maintained effective for the period required pursuant to
Section 3(b), unless in the case of this clause (ii) the Demand Registration
does not become effective after being filed by the Company solely by reason of
the refusal to proceed by the holders of Registrable Securities unless (A) the
refusal to proceed is based upon the written advice of counsel relating to a
matter with respect to the Company or (B) the Purchasers that requested their
Registrable Securities to be included in the Demand Registration elect to pay
all registration and other expenses in connection with that Demand Registration.
The Company shall not be obligated to effect a Demand Registration (i) within 6
months of the effective date of a registration pursuant to Section 2 if there is
a registration effective pursuant to Section 2 at the time of the Demand Notice,
or (ii) within 120 days of the effective date of a previous Demand Registration
pursuant to this Section 3.
(b) FILING AND EFFECTIVENESS.
(i) The Company will file a Registration Statement relating to
any Demand Registration within 30 calendar days and will use its
reasonable best efforts to cause the Registration Statement to be
declared effective by the SEC within 90 calendar days of the date on
which the Company received the related Demand Notice. Each Demand
Notice must specify the number of Registrable Securities to be
registered and the intended methods of distribution of those
Registrable Securities. If Purchaser delivering the Demand Notice
specifies one particular type of Underwritten Offering, the method of
distribution will be that type of Underwritten Offering or a series of
that type of
5
8
Underwritten Offerings during the period during which the Registration
Statement is effective.
(ii) In connection with a Demand Registration pursuant to
Section 3(a), the Company will keep the Registration Statement
effective for a period of not less than 180 days or such shorter period
which will terminate when all Registrable Securities covered by such
Registration Statement have been sold. If any Demand Registration is
requested to be effected as a "shelf" registration, the Company will
keep the Registration Statement filed in respect of that Demand
Registration effective for a period of up to one year from the date on
which the SEC declares that Registration Statement effective (subject
to extension pursuant to Section 6 hereof) or such shorter period which
will terminate when all Registrable Securities covered by that
Registration Statement have been sold pursuant to that Registration
Statement.
(iii) Within five Business Days after receipt of a Demand
Notice, the Company will serve written notice of its receipt of the
Demand Notice (the "Notice") to the other Purchasers and will, subject
to the provisions of Section 2(c), include in that Demand Registration
all Registrable Securities with respect to which the Company receives a
written request from any such other Purchaser for inclusion therein
within 15 calendar days after receipt of the Notice.
(c) PRIORITY ON DEMAND REGISTRATION. If any of the Registrable
Securities registered pursuant to a Demand Registration are to be sold in one or
more firm commitment Underwritten Offerings, the Company may also provide
written notice to other holders of its equity securities (other than Registrable
Securities), if any, who have piggyback registration rights with respect thereto
and will permit all of those holders who request to be included in the Demand
Registration to include any or all equity securities held by those holders in
that Demand Registration on the same terms and conditions as the Registrable
Securities. Notwithstanding the foregoing, if the managing underwriter or
underwriters of the Underwritten Offering to which that Demand Registration
relates advises the Company and the Purchasers whose Registrable Securities are
being registered that the total amount of Registrable Securities and securities
that the other equity security holders intend to include in that Demand
Registration is in the aggregate in excess of that number of securities which
can be sold in such underwritten offering without materially and adversely
affecting the success of such offering, then the Company will include in such
registration (i) first, up to the full number of the Registrable Securities
requested to be registered pursuant to Section 3(a) hereof to the extent such
Registrable Securities requested to be registered do not exceed the largest
number of securities which can be sold in such underwritten offering without
materially and adversely affecting such offering and (ii) second, to the extent
that the number of Registrable Securities requested to be registered pursuant to
Section 3(a) hereof is less than the number of securities which can be sold in
such underwritten offering without materially and adversely affecting such
offering, such number of shares of equity securities the Company requests to be
included in such registration and such number of other securities proposed to be
sold by any other Person (the securities to be included in such underwritten
offering by the Company and such other Persons to be allocated as agreed upon by
the Company and such other Persons) which, in the opinion of the managing
underwriter or underwriters, can be sold without materially and adversely
affecting such underwritten offering.
6
9
(d) BLACK-OUT PERIODS OF PURCHASER. Subject to the conditions of this
Section 3(d), (i) the Company shall have the right, exercisable on not more than
one occasion during any one-year period, from time to time to require Purchasers
not to sell under the registration requested pursuant to this Section 3 or to
suspend the effectiveness thereof during the period starting with the date 30
days prior to the Company's good faith estimate, as certified in writing by an
executive officer of the Company to Purchasers, of the proposed date of filing
of a Registration Statement or a preliminary prospectus supplement relating to
an existing registration statement, in either case, pertaining to an
Underwritten Offering of equity securities of the Company for the account of the
Company, and ending on the date 90 days following the effective date of such
registration statement or the date of filing of such prospectus supplement, and
(ii) the Company shall be entitled to postpone or suspend (but not for a period
exceeding 60 days per transaction) the filing or effectiveness of a Registration
Statement otherwise required to be prepared and filed by it pursuant to this
Section 3 on not more than one occasion during any 12-month period if the
Company determines, in its good faith judgment, that such registration and
offering or continued effectiveness would interfere with any material financing,
acquisition, disposition, corporate reorganization or other material transaction
involving the Company or any of its subsidiaries or preexisting negotiations,
discussions or pending proposal with respect to any such material transaction or
public disclosure thereof would be required prior to the time such disclosure
might otherwise be required, or when the Company is in possession of material
information that it deems advisable not to disclose in a registration statement.
4. PIGGYBACK REGISTRATION.
(a) RIGHT TO PIGGYBACK. If at any time after the earlier of (i)
expiration of the Lock-Up Period, (ii) the occurrence of a Change of Control or
(iii) receipt of a notice from the Company of the execution by the Company of a
definitive agreement with a Person which will result in a Change of Control, the
Company proposes to file a Registration Statement under the Securities Act with
respect to an offering of any class of equity securities (other than a
registration statement (i) on Form X-0, X-0 or any successor form thereto or
(ii) filed solely in connection with an offering made solely pursuant to
employee benefit plans of the Company or in connection with an acquisition of
any Person), whether or not for its own account, then the Company will give
written notice of the proposed filing to the Purchasers as soon as practicable
but in any event at least 30 calendar days before the anticipated filing date of
such Registration Statement, which such notice will offer to Purchasers the
opportunity to register such amount of Registrable Securities as each Purchaser
may request (a "Piggyback Registration"). Subject to Section 4(b), the Company
will include in each Piggyback Registration all Registrable Securities with
respect to which the Company has received from any Purchaser written requests
for inclusion in that Piggyback Registration within 15 days of the giving of
such notice. Purchasers will be permitted to withdraw all or part of the
Registrable Securities from a Piggyback Registration at any time prior to the
effective date of the Piggyback Registration. The Company may at any time
terminate a Piggyback Registration in its sole discretion without liability,
provided that the offering to which such Piggyback Registration relates shall be
terminated in its entirety.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. The Company will cause the
managing underwriter or underwriters of a proposed Underwritten Offering to
permit the Purchasers that requested their Registrable Securities to be included
in the Piggyback Registration for such
7
10
offering to include therein all Registrable Securities requested to be so
included in the Piggyback Registration on the same terms and conditions as any
similar securities, if any, of the Company included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of the offering deliver
an opinion to the Company and Purchasers to the effect that the total amount of
securities which Purchasers, the Company and any other Persons having rights to
participate in that registration propose to include in the Underwritten Offering
exceeds the number of securities that can be sold in such offering without
materially and adversely affecting such offering, then:
(i) if the registration is a primary registration on behalf of
the Company, the Company will include therein (x) first, up to the full
amount of securities the Company proposes to sell that, in the opinion
of the managing underwriter or underwriters, can be sold in such
offering without materially and adversely affecting such offering, (y)
second, to the extent that the number of securities to be offered by
the Company is less than the number of securities which can be sold in
such offering without materially and adversely affecting such offering,
such number of shares of Registrable Securities requested to be sold
for the account of Purchasers which can be sold in such offering
without materially and adversely affecting such offering (provided that
if the number of such Registrable Securities requested to be registered
exceeds the number of securities which can be sold in such offering
without materially and adversely affecting such offering, then the
number of Registrable Securities to be included in such registration
shall be allocated pro rata among all Purchasers requesting inclusion
in such offering on the basis of the relative number of Registrable
Securities requested by each such Purchaser), and (z) third, to the
extent that the number of securities to be offered by the Company and
the number of Registrable Securities requested to be included in such
registration pursuant to Section 4(a) hereof are, in the aggregate,
less than the number of securities which can be sold in such offering
without materially and adversely affecting such offering, such number
of securities proposed to be sold for the account of any other Person
(other than the Company and Purchasers) which can be sold in such
offering without materially and adversely affecting such offering
(provided that if the number of such securities of such other Persons
requested to be registered exceeds the number of securities which can
be sold in such offering without materially and adversely affecting
such offering, then the number of securities of such other Persons
shall be allocated pro rata among all such Persons on the basis of the
relative number of securities each such Person has requested to be
included in such registration); and
(ii) if the registration is an underwritten secondary
registration on behalf of holders of securities of the Company other
than Purchasers, the Company will include therein: (x) first, up to the
full number of securities of the Persons exercising "demand"
registration rights that, in the opinion of the managing underwriter or
underwriters, can be sold in such offering without materially and
adversely affecting such offering, (y) second, to the extent the number
of securities to be offered by such Persons exercising "demand"
registration rights is less than the number of securities which can be
sold in such offering without materially and adversely affecting such
offering, such number of shares of Registrable Securities requested to
be sold for the account of Purchasers which can be sold in such
offering without materially and adversely affecting such offering
(provided that if the number of such Registrable Securities requested
to be registered
8
11
exceeds the number of securities which can be sold in such offering
without materially and adversely affecting such offering, then the
number of Registrable Securities to be included in such registration
shall be allocated pro rata among all Purchasers requesting inclusion
in such offering on the basis of the relative number of Registrable
Securities requested by each such Purchaser), and (z) third, to the
extent the number of securities to be offered by such Persons
exercising "demand" registration rights and the number of Registrable
Securities requested to be included in such offering pursuant to
Section 4(a) hereof are, in the aggregate, less than the number of
securities which can be sold in such offering without materially and
adversely affecting such offering, such number of securities proposed
to be sold for the account of any other Person (other than such Persons
exercising "demand" rights and Purchasers) which can be resold without
materially and adversely affecting such offering (provided that if the
number of such securities of such other Persons requested to be
registered exceeds the number of securities which can be sold in such
offering without materially and adversely affecting such offering, then
the number of securities of such other Persons shall be allocated pro
rata among all such Persons on the basis of the relative number of
securities each such Person has requested to be included in such
registration).
5. REGISTRATION OF SECURITIES OTHER THAN REGISTRABLE SECURITIES.
Without the prior written consent of Purchasers, the Company will not grant to
any Person the right to request the Company to register any securities of the
Company under the Securities Act unless the rights so granted are subject to the
prior rights of Purchasers set forth herein and, if exercised, would not
otherwise conflict or be inconsistent in any way with the provisions of this
Agreement. The Company agrees that it will not grant to any Person any rights
which obligate the Company to give such Person "most favored nations" benefits
with respect to the registration of any shares of equity securities of the
Company or any securities convertible or exercisable into shares of any equity
securities of the Company.
6. "MARKET STAND-OFF" AGREEMENT. Purchasers will not, to the extent
requested (by timely written notice) by the managing underwriter or underwriters
for any Underwritten Offering of the Company's capital stock (or any securities
issued by the Company that are exercisable to purchase, convertible into or
exchangeable for shares of capital stock of the Company), sell for Purchaser's
account, or otherwise transfer or dispose of any Registrable Securities (except
to the extent permitted in the Underwritten Offering) without the prior written
consent of the Company and/or managing underwriter or underwriters for such
period of time (not to exceed 90 days) from the effective date of the
registration statement relating to the Underwritten Offering as the Company
and/or managing underwriter or underwriters may specify. The Company may impose
stop-transfer instructions with respect to the Registrable Securities of
Purchasers until the end of that 90-day period in order to enforce these
restrictions. In no event, however, will Purchasers be required to enter into
more than one such agreement during any period of 12 consecutive months.
7. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations pursuant to Sections 2, 3 and 4, the Company will
effect those registrations to permit the sale of the Registrable Securities in
accordance with the intended method or methods of distribution of those
Registrable Securities, and pursuant thereto the Company will as expeditiously
as possible:
9
12
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by Purchasers in accordance
with the intended method or methods of distribution thereof, and cause each such
Registration Statement to become effective and remain effective as provided
herein; PROVIDED, HOWEVER, that not less than five Business Days before filing a
Registration Statement or Prospectus or any amendments or supplements thereto
(excluding documents that would be incorporated or deemed to be incorporated
therein by reference) the Company will furnish to the Purchasers whose
Registrable Securities are covered by that Registration Statement, counsel for
such Purchasers with respect to such registration ("Special Counsel") and the
managing underwriters, if any, copies of all documents proposed to be filed,
which documents will be subject to review by such Purchasers, the Special
Counsel and underwriters, and the Company will not file any Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
(excluding any documents which, upon filing, would or would be incorporated or
deemed to be incorporated by reference therein) to which the Purchasers whose
Registrable Securities are covered by that Registration Statement, the Special
Counsel or the managing underwriter, if any, may reasonably object on a timely
basis;
(b) Prepare and file with the SEC any amendments and post-effective
amendments to each Registration Statement as may be necessary to keep the
Registration Statement continuously effective for the applicable period
specified in Sections 2 and 3; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the distribution of all securities covered by the Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in the Registration Statement as
so amended or to the Prospectus as so supplemented;
(c) Notify Purchasers, the Special Counsel and the managing
underwriters, if any, promptly, and (if requested by any of those Persons)
confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the Registration
Statement or amendment has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if at any
time the representations and warranties of the Company contained in any
agreement contemplated by Section 6(m) (including any underwriting agreement)
cease to be true and correct in any material respect, (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (vi) of the occurrence of any event which makes any statement made in
the Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
which requires the making of any changes in a Registration Statement, Prospectus
or document so that, in the case of the Registration Statement, it 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
not misleading and,
10
13
in the case of the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated or that
is necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (vii) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate;
(d) Use reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment;
(e) If requested by the managing underwriters, if any, or Purchasers
whose Registrable Securities are being registered, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, and Purchasers agree should be included therein
to comply with applicable law and (ii) make all required filings of the
Prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated in
the Prospectus supplement or post-effective amendment; provided, however, that
the Company will not be required to take any actions under this Section 6(e)
that are not, in the reasonable opinion of counsel for the Company, in
compliance with applicable law;
(f) Furnish to Purchasers, the Special Counsel and each managing
underwriter, if any, without charge, conformed copies of the Registration
Statement and each post-effective amendment or supplement thereto, including
financial statements (including schedules, all documents incorporated or deemed
incorporated therein by reference and all exhibits) as Purchasers may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by Purchasers;
(g) Deliver to Purchasers, the Special Counsel and the underwriters, if
any, without charge, as many copies of the Prospectus or Prospectuses relating
to those Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as those Persons may reasonably request; and,
subject to the last paragraph of this Section 6, the Company hereby consents to
the use of that Prospectus or each amendment or supplement thereto by Purchasers
and the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by that Prospectus or any amendment or supplement
thereto;
(h) Cooperate with Purchasers and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates will not bear any
restrictive legends; and enable the Registrable Securities to be in such
denominations and registered in such names as the managing underwriters, if any,
may request at least two Business Days prior to any sale of Registrable
Securities to the underwriters;
(i) Use its reasonable best efforts to register or qualify such
Registrable Securities covered by such Registration Statement under the State
Securities or blue sky laws of such jurisdictions as Purchasers and or the
underwriters, if any, may reasonably request, and do any and all other acts and
things which may be reasonably necessary to consummate the disposition
11
14
in such jurisdictions of the Registrable Shares of Purchasers, except that the
Company shall not be required to qualify generally to do business, as a foreign
corporation in any jurisdiction where, but for the requirements of this clause
(i), it would not be obligated to be so qualified or consent to general service
of process in any such jurisdiction;
(j) Use its reasonable best efforts to cause the sale of Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities within the
United States as may be necessary to enable the Purchasers or the underwriters,
if any, to consummate the disposition of such Registrable Securities;
(k) Upon the occurrence of any event contemplated by Section 6(c)(vi)
or 6(c)(vii) hereof, promptly prepare a supplement or post-effective amendment
to each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the Purchasers of the Registrable Securities
being sold thereunder, such Prospectus will 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;
(l) Use its reasonable best efforts to cause all Registrable Securities
covered by such Registration Statement to be (i) listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed or, if no similar securities issued by the Company are then so listed, on
the New York Stock Exchange or another national securities exchange if the
securities qualify to be so listed or (ii) authorized to be quoted on the Nasdaq
National Market System or the Nasdaq SmallCap Market if the securities qualify
to be so quoted; in each case, if requested by the holders of a majority of the
Registrable Securities covered by such Registration Statement or the managing
underwriters, if any;
(m) In the event of an underwritten offering, enter into such
agreements (including an underwriting agreement in form, scope and substance as
is customary in underwritten offerings) and take all such other actions in
connection therewith as may be requested by the managing underwriters in order
to expedite or facilitate the disposition of the Registrable Securities and, in
such connection, (i) make such representations and warranties to Purchasers
whose Registrable Securities are being registered and the underwriters with
respect to the business of the Company and its Subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and scope as
are customarily made by issuers to underwriters in Underwritten Offerings and
confirm those representations and warranties if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters) addressed to Purchasers and each of the underwriters, if
any, covering the matters customarily covered in opinions requested in
Underwritten Offerings and such other matters as may be reasonably requested by
the managing underwriters; (iii) use its best efforts to obtain "comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other certified public accountants of any
Subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data is, or is required to be, included in
12
15
the Registration Statement), addressed to Purchasers and each of the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "comfort" letters in connection with Underwritten
Offerings; and (iv) deliver such documents and certificates as may be reasonably
requested by Purchasers, the Special Counsel and the managing underwriters, if
any, to evidence the continued validity of the representations and warranties of
the Company and its Subsidiaries made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement or similar agreement entered into by the Company. The foregoing
actions will be taken in connection with each closing under such underwriting or
similar agreement as and to the extent required thereunder;
(n) Upon reasonable notice and at reasonable times during normal
business hours, make available for inspection by a representative of Purchasers,
any underwriter participating in any disposition of Registrable Securities and
any attorney or accountant retained by Purchasers or any underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company and its Subsidiaries, and cause the officers, directors and employees of
the Company and its Subsidiaries to supply all information reasonably requested
by any such representative, underwriter, attorney or accountant in connection
with such Registration Statement; PROVIDED, HOWEVER, that any records,
information or documents that are designated by the Company in writing as
confidential at the time of delivery of such records, information or documents
will be kept confidential by those Persons (and such Persons shall agree in
writing with the Company to keep the same confidential) unless (i) those
records, information or documents are in the public domain or otherwise publicly
available, (ii) disclosure of those records, information or documents is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, or (iii) disclosure of those records,
information or documents, in the written opinion of counsel to such Person
delivered to the Company, is otherwise required by law (including, without
limitation, pursuant to the requirements of the Securities Act);
(o) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45
calendar days after the end of any 12-month period (or 90 calendar days after
the end of any 12-month period if such period is a fiscal year) (i) commencing
at the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts Underwritten Offering, and
(ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company, after the effective date of a
Registration Statement, which statements shall cover that 12-month period;
(p) Cause its officers and other appropriate employees to participate
in any presentations regarding any Underwritten Offering reasonably requested by
Purchasers or the managing underwriter or underwriters participating in the
disposition of those Registrable Securities, provided that so doing does not
unreasonably interfere with the business of the Company;
(q) Use its reasonable best efforts to take all of the steps necessary
or advisable to effect the registration of the Registrable Securities covered by
a Registration Statement contemplated hereby.
13
16
The Company may require Purchasers to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing and the Company
may exclude from such registration the Registrable Securities of Purchasers if
Purchasers fail to furnish such information required by Applicable Law within a
reasonable time after receiving such request.
Each Purchaser will be deemed to have agreed by virtue of its
acquisition of Registrable Securities that, upon receipt of any notice from the
Company of the occurrence of any event of the kind described in Section
6(c)(ii), 6(c)(iii), 6(c)(v), 6(c)(vi) or 6(c)(vii), Purchasers will forthwith
discontinue disposition of their respective Registrable Securities covered by
the Registration Statement or Prospectus until Purchaser's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(k) hereof,
or until it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus. If the Company gives any such notice, the time
period prescribed in Sections 2 and 3(b) will be extended by the number of days
during the time period from and including the date of the giving of that notice
to and including the date when each Purchaser of Registrable Securities covered
by such Registration Statement shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 6(k) hereof or (y)
the written advice by the Company described above.
8. REGISTRATION EXPENSES.
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company will be borne by the Company whether or not
any of the Registration Statements become effective. Those fees and expenses
will include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and (B) of compliance with state securities or "blue sky" laws), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing or photocopying any Prospectuses), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company and, in the case of any Underwritten Offering, of the Special Counsel
for the Purchasers whose Registrable Securities are being registered, (v) fees
and disbursements of all independent certified public accountants referred to in
Section 6(m)(iii) (including the expenses of any special audit and "comfort"
letters required by or incident to such performance), (vi) fees and expenses of
any "qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Rule 2720(c) of the National
Association of Securities Dealers, Inc. Conduct Rules, (vii) Securities Act
liability insurance if the Company so desires that insurance, and (viii) fees
and expenses of all other Persons retained by the Company, but excluding
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities. In addition, the Company will
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which similar securities issued by the Company are then listed and the fees
and expenses of any Person, including special experts, retained by the Company.
14
17
(b) In connection with any Demand Registration or Piggyback
Registration under this Agreement, the Company will reimburse the Purchasers
whose Registrable Securities are being registered in such registration for the
reasonable fees and disbursements of not more than one Special Counsel, together
with appropriate local counsel, chosen by the Purchasers whose Registrable
Securities are being registered.
9. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company will, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each Purchaser whose Registrable Securities have been
registered pursuant to this Agreement, the officers, directors, partners,
stockholders, and agents and employees of each of them, each Person who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any Purchaser and the officers, directors, partners, stockholders,
agents and employees of any such controlling Person, from and against all
losses, claims, damages, liabilities, costs (including, without limitation, the
costs of investigation and reasonable attorneys' fees and disbursements) and
expenses (collectively, "Losses"), as incurred, caused by, arising out of or
based upon any untrue or alleged untrue statement of a material fact contained
in any Registration Statement, Prospectus or form of Prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or 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 under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company will not be liable to any Purchaser to the
extent that any such Losses arise out of or are based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any
preliminary prospectus if either (i) (A) such Purchaser failed to send or
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Purchaser of a Registrable Security to the
Person asserting the claim from which such Losses arise and (B) the Prospectus
would have completely corrected such untrue statement or alleged untrue
statement or such omission or alleged omission; (ii) such untrue statement or
alleged untrue statement, omission or alleged omission is completely corrected
in an amendment or supplement to the Prospectus previously furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, and such Purchaser thereafter fails to deliver such Prospectus as
so amended or supplemented prior to or concurrently with the sale of a
Registrable Security to the Person asserting the claim from which such Losses
arise; or (iii) such untrue statement or alleged untrue statement, omission or
alleged omission was contained in any information so furnished in writing by
such Purchaser to the Company expressly for use in such Registration Statement
or Prospectus and was relied upon by the Company in the preparation of such
Registration Statement, Prospectus or preliminary prospectus.
(b) INDEMNIFICATION BY PURCHASER OF REGISTRABLE SECURITIES. In
connection with any Registration Statement in which the Registrable Securities
of a Purchaser are being registered, each Purchaser will furnish to the Company
in writing such information as the Company reasonably requests for use in
connection with any Registration Statement or Prospectus. Each Purchaser agrees
severally, but not jointly, to indemnify and hold harmless, to the fullest
extent permitted by law, the Company, its directors, officers, shareholders,
agents and employees, each Person who controls (within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act) the Company, and the
directors, officers, shareholders, agents or employees
15
18
of such controlling Persons, from and against all Losses caused by, arising out
of or based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in preliminary prospectus or arising out of or based upon
any omission or alleged omission of 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, but only to the
extent, that such untrue statement or omission is contained in any information
so furnished in writing by such Purchaser to the Company expressly for use in
such Registration Statement or Prospectus and was relied upon by the Company in
the preparation of such Registration Statement, Prospectus or preliminary
prospectus. In no event will the liability of any Purchaser under this Section
8(b) be greater in amount than the dollar amount of the proceeds received by
such Purchaser upon the sale of the Registrable Securities giving rise to the
indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to this Section
8(c), such Person (the "indemnified party") will promptly notify the Person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, will retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and will pay the fees and disbursements of such counsel related to
such proceeding; provided that the failure of any indemnified party so to notify
the indemnifying party will not relieve the indemnifying party of its
obligations hereunder except to the extent that the indemnifying party is
actually prejudiced by such failure to notify. In any such proceeding, any
indemnified party will have the right to retain its own counsel, but the fees
and expenses of such counsel will be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the indemnifying party shall have
failed within in a reasonable period of time to retain counsel reasonably
satisfactory to the indemnified party, or (iii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that, unless there exists a conflict among indemnified
persons, the indemnifying party will not, in respect of the legal expenses of
any indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all indemnified parties and
that all such fees and expenses will be reimbursed as they are incurred. The
indemnifying party will not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such consent or
if there shall be a final non-appealable judgment for the plaintiff for which
the indemnified person is entitled to indemnification pursuant to this
Agreement, the indemnifying party agrees to indemnify the indemnified party from
and against any Loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it will be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such
16
19
request prior to the date of such settlement. No indemnifying party will,
without the prior written consent of the indemnified party, effect any
settlement or compromise of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) CONTRIBUTION. If the indemnification provided for in this Section 8
is unavailable to an indemnified party under Section 8(a) or 8(b) in respect of
any Losses or is insufficient to hold harmless the indemnified party (other than
giving effect to the last sentence of Section 8(b)), then each applicable
indemnifying party, in lieu of indemnifying the indemnified party, will
contribute to the amount paid or payable by the indemnified party as a result of
the Losses, in the proportion as is appropriate to reflect the relative fault of
the indemnifying party or indemnifying parties, on the one hand, and the
indemnified party, on the other hand, in connection with the actions, statements
or omissions that resulted in the Losses as well as any other relevant equitable
considerations. The relative fault of the indemnifying party or indemnifying
parties, on the one hand, and the indemnified party, on the other hand, will be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or related to
information supplied by, the indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission and any other equitable
considerations appropriate in the relevant circumstances. The amount paid or
payable by a party as a result of any Losses will be deemed to include any legal
or other fees or expenses incurred by such party in connection with any action
or proceeding. In no event will the obligation of a Purchaser under this Section
8(d) be greater in amount than the dollar amount of the proceeds (net of payment
of all expenses) received by such Purchaser upon the sale of the Registrable
Securities giving rise to the contribution obligation.
(e) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by PRO RATA allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8, in no event shall an
indemnifying party who is a Purchaser be required to contribute any amount in
excess of the dollar amount of the proceeds (net of payment of all expenses)
received by such Purchaser upon the sale of the Registrable Securities giving
rise to the contribution obligation over the amount of any damages which such
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity, contribution and expense reimbursement obligations
of the Company hereunder will be in addition to any liability the Company may
otherwise have under this Agreement. The provisions of this Section 8 will
survive so long as Registrable Securities remain outstanding, notwithstanding
any transfer of the Registrable Securities by any holder thereof or any
termination of this Agreement.
17
20
10. RULE 144. The Company agrees that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act in a timely
manner in accordance with the requirements of the Securities Act and Exchange
Act, and will cooperate with any Purchaser (including, without limitation, by
making any representations as any Purchaser may reasonably request), all to the
extent required from time to time to enable the Purchaser to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemptions provided by Rule 144. Upon the request of any Purchaser, the
Company will deliver to the Purchaser a written statement as to whether it has
complied with such filing requirements. If at any time the Company ceases to be
required to file reports under the Securities Act and the Exchange Act, the
Company will upon request of any Purchaser, make publicly available annual
reports and such other information, documents and other reports of the type
specified in Sections 13 and 15(d) of the Exchange Act.
11. UNDERWRITTEN REGISTRATIONS. If any of the Registrable Securities
covered by any Shelf Registration or Demand Registration are to be sold in an
Underwritten Offering, the investment banker or investment bankers and manager
or managers that will manage the offering shall be Xxxxxx Xxxxxxx, Xxxx Xxxxxx &
Co. or a Subsidiary or Affiliate thereof ("MSDW") to the extent required by and
in accordance with Section 4.15 of the Securities Purchase Agreement and if such
provision does not apply, then as the Purchasers whose Registrable Securities
are being registered in such Shelf Registration or Demand Registration shall
select, provided that such investment banker or manager shall be reasonably
satisfactory to the Company. If any Piggyback Registration is an Underwritten
Offering, subject to the Company's agreement set forth in Section 4.15 of the
Securities Purchase Agreement, the Company will have the right to select the
investment banker or investment bankers and managers to administer the offering.
Each party hereto agrees that, in connection with any Underwritten Offering
hereunder in which it participates, it will undertake to offer customary
indemnification to the participatory underwriters.
12. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, and will not, on or after the date hereof, enter into any agreement with
respect to its securities which is inconsistent with the rights granted to the
holders of Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions of this Agreement may
not be given, unless the Company has obtained the written consent of Purchasers.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
of this Agreement with respect to a matter that relates exclusively to the
rights of a Purchaser whose Registrable Securities are being registered pursuant
to a Registration Statement and that does not directly or indirectly affect the
rights of the other Purchasers may be given only by affected Purchasers;
PROVIDED, HOWEVER, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
18
21
(c) NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and delivered
personally, sent by overnight courier to the parties or sent by facsimile
(providing confirmation of transmission) at the following addresses or facsimile
numbers (or at such other address or telecopy number for a party as will be
specified by like notice):
(i) IF TO THE COMPANY:
Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq. and Xx. Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
WITH COPIES TO:
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(iii) IF TO PURCHASERS:
x/x Xxxxxx Xxxxxxx Xxxx Xxxxxx Xxxx XXX, L.P.
37th Floor
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Mr. Xxxxxxx Xxxxxx and Xx. Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
WITH A COPY TO:
Xxxxx, Day, Xxxxxx & Xxxxx
2300 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
All notices will be deemed to be given only when actually received.
(d) OWNER OF REGISTRABLE SECURITIES. The Company will maintain, or will
cause its registrar and transfer agent to maintain, a stock book with respect to
the Common Stock, in which all transfers of Registrable Securities of which the
Company has received notice will be recorded. The Company may deem and treat the
Person in whose name Registrable Securities
19
22
are registered in the stock book of the Company as the owner thereof for all
purposes, including, without limitation, the giving of notices under this
Agreement.
(e) SUCCESSORS AND ASSIGNS. This Agreement will inure to the benefit of
and be binding upon the successors and assigns of each of the parties and will
inure to the benefit of each holder of any Registrable Securities. The Company
may not assign its rights or delegate its obligations hereunder and Purchasers
may assign their rights hereunder only to a Permitted Transferee in accordance
with the Securities Purchase Agreement or to the other Persons described in the
definition of "Purchasers" herein.
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(g) HEADINGS. Article and Section headings in this Agreement are
included herein for convenience of reference only and will not constitute a part
of this Agreement for any other purpose.
(h) GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Massachusetts, without giving effect
to the principles of conflict of laws of that State that would apply the laws of
any other jurisdiction. Each of the parties to this Agreement hereby irrevocably
and unconditionally submits, for itself and its property, to the exclusive
jurisdiction of the courts of the State of New York, and any appellate court
thereof, in any action, suit, or proceeding arising out of or relating to this
Agreement and any such action, suit or proceeding will be brought only in such
court (and waives any objection based on forum non conveniens or any other
objection to venue therein). Process in any such action, suit or proceeding may
be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 12(c) shall
be deemed effective service of process on such party.
(i) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement,
and supersedes all prior agreements and undertakings, both written and oral,
between the parties, with respect to the subject matter of this Agreement.
(j) ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, will be entitled
to recover reasonable attorneys' fees and related disbursements and expenses in
addition to any other available remedy.
(k) SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision will be interpreted
to be only so broad as is enforceable.
20
23
(l) EXCULPATION. Notwithstanding any provision herein to the contrary,
the liability of each Purchaser shall be limited to the assets of such Purchaser
and no partner, shareholder, officer, director, employee or agent of Purchaser
shall have any personal liability hereunder.
[Signature Page Follows]
21
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BLUEGREEN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
XXXXXX XXXXXXX REAL ESTATE FUND III, L.P.
By: MSREF III, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX REAL ESTATE
INVESTORS III, L.P.
By: MSREF III, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
MSP REAL ESTATE FUND, L.P.
By: MSREF III, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
22
25
MSREF III SPECIAL FUND, L.P.
By: MSREF III, Inc., its General Partner
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
23
