Registration Rights Agreement
Exhibit 99.3
THE XXXXXX XXXXXX CORPORATION
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of November 9, 2010 (this “Agreement”),
by and between the purchasers listed on Schedule I hereto (the “Purchasers”),
Blackstone Real Estate Partners VI L.P., a Delaware limited partnership (“BREP”)and the
entities listed on Schedule II hereto (collectively with BREP, “Blackstone”), and
The Xxxxxx Xxxxxx Corporation, a Delaware corporation (the “Company”).
RECITALS
WHEREAS, the Purchasers have, pursuant to the terms of that certain Amended and Restated Stock
Purchase Agreement, effective as of March 31, 2010, by and between the Company and the Purchasers
(as the same may be amended from time to time, the “Stock Purchase Agreement”) agreed,
among other things, to purchase 1,312,500 shares of common stock, par value $0.01, of the Company
(the “Common Stock”);
WHEREAS, (a) the Purchasers have, pursuant to the terms of that certain Purchase Agreement,
dated as of August 2, 2010, by and among the Purchasers and BREP VI agreed, among other things,
that Blackstone shall purchase in the Purchasers’ place 100,191 shares of Common Stock under the
Stock Purchase Agreement, (b) REP Investments LLC (“REP”) has, pursuant to the terms of
that certain Purchase Agreement, dated as of August 2, 2010, by and between REP and BREP VI agreed,
among other things, that Blackstone shall purchase in REP’s place 200,382 shares of Common Stock
under the Cornerstone Investment Agreement (as defined below) and (c) The Xxxxxxxxx Xxxx, a series
of Fairholme Funds, Inc. and Fairholme Focused Income Fund, a series of Fairholme Funds, Inc. have,
pursuant to the terms of that certain Purchase Agreement, dated as of August 2, 2010, by and among
such entities and BREP VI agreed, among other things, that Blackstone shall purchase in their place
100,191 shares of Common Stock under the Fairholme Stock Purchase Agreement (as defined below); and
WHEREAS, in case any securities held by a Purchaser or Blackstone or any of their respective
transferees are at any time not freely transferable by the holder in accordance with applicable
laws, the Company, Blackstone and the Purchasers desire to define certain registration rights with
respect to the Common Stock, certain warrants and certain other securities on the terms and subject
to the conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable
consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the respective meanings set forth below:
Affiliate: shall mean as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with, the first Person.
A Person shall be deemed to control another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and policies of the other
Person, whether through the ownership of voting securities, by contract, or otherwise;
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Agreement: shall have the meaning set forth in the Preamble hereto;
Blackstone: shall have the meaning set forth in the Preamble hereto;
Brookfield Holders: shall mean the “Holders” defined in that certain Registration
Rights Agreement, dated as of the date hereof, by and between the Company and Brookfield Retail
Holdings LLC (formerly known as REP Investments LLC), a Delaware limited liability company,
Brookfield Retail Holdings II LLC, a Delaware limited liability company, Brookfield Retail Holdings
III LLC, a Delaware limited liability company, Brookfield Retail Holdings IV-A LLC, a Delaware
limited liability company, Brookfield Retail Holdings IV-D LLC, a Delaware limited liability
company, Brookfield Retail Holdings V LP, a Delaware limited partnership, and Brookfield US Retail
Holdings LLC, a Delaware limited liability company, as amended from time to time;
Brookfield/Fairholme Holders: shall mean, collectively, the Brookfield Holders and
Fairholme Holders, and Brookfield/Fairholme Holder shall mean any Brookfield Holder or Fairholme
Holder;
Closing Date: shall have the meaning ascribed thereto in the Stock Purchase Agreement;
Commission: shall mean the Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act;
Common Stock: shall have the meaning set forth in the Recitals hereto;
Company: shall have the meaning set forth in the Preamble hereto;
Cornerstone Investment Agreement: shall mean that certain Amended and Cornerstone
Investment Agreement, effective as of March 31, 2010, by and between GGP and REP Investments LLC, a
Delaware limited liability company, as amended from time to time;
Demand Notice: shall have the meaning set forth in Section 2(a)(i) hereof;
Exchange Act: shall mean the Securities Exchange Act of 1934, as amended (or any
successor act), and the rules and regulations promulgated thereunder;
Fairholme Holders: shall mean the “Holders” defined in that certain Registration
Rights Agreement, dated as of the date hereof, by and between the Company and The Xxxxxxxxx Xxxx, a
series of Fairholme Funds, Inc. a Maryland corporation, and Fairholme Focused Income Fund, a series
of Fairholme Funds, Inc., a Maryland corporation, as amended from time to time;
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Fairholme Stock Purchase Agreement: shall mean that certain Amended and Restated
Stock Purchase Agreement, effective as of March 31, 2010, by and between GGP and the Fairholme
Holders, as amended from time to time;
FINRA: shall mean the Financial Industry Regulatory Authority;
Holder: shall mean any holder of Registrable Securities subject to this Agreement,
solely in their capacity as such, including Permitted Assignees;
Indemnified Party: shall have the meaning set forth in Section 2(f)(iii) hereof;
Indemnifying Party: shall have the meaning set forth in Section 2(f)(iii) hereof;
Initial Investors: shall mean (i) the Purchasers, (ii) any member of the Purchaser
Group, (iii) Blackstone and (iv) any Permitted Assignees under clauses (i) and (ii) of Section 3(e)
hereof;
Initiating Holder(s): shall mean any Holder or any group of Holders, other than
Blackstone, with respect to the Registrable Securities it is designated to receive pursuant to the
Investment Agreements;
Investment Agreements: shall mean, collectively, the Cornerstone Investment
Agreement, the Fairholme Stock Purchase Agreement and the Stock Purchase Agreement;
Investors: shall mean (i) any Initial Investors and (ii) any Permitted Assignees
under clause (iii) of Section 3(e) hereof;
Issuer Free Writing Prospectus: shall mean an “Issuer Free Writing Prospectus,” as
defined in Rule 433 under the Securities Act, relating to an offer of Registrable Securities;
Losses: shall have the meaning set forth in Section 2(f)(i) hereof;
Other Stockholders: shall have the meaning set forth in Section 2(a)(iii) hereof;
Participating Holders: shall mean Holders participating in the Registration relating
to the Registrable Securities;
Permitted Assignees: shall have the meaning set forth in Section 3(e) hereto;
Person: shall mean an individual, partnership, joint-stock company, corporation,
trust or unincorporated organization, and a government or agency or political subdivision thereof;
Prospectus: shall mean the prospectus (including any preliminary, final or summary
prospectus) included in any Registration Statement, all amendments and supplements to such
prospectus and all other material incorporated by reference in such prospectus;
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Purchaser Group: shall have the meaning ascribed thereto in the Stock Purchase
Agreement;
Purchasers: shall have the meaning set forth in the Preamble hereto;
Qualifying Employee Stock: shall mean (i) rights and options issued in the ordinary
course of business under employee benefits plans of the Company or any predecessor or otherwise to
executives in compensation arrangements approved by the Board of Directors of the Company or any
predecessor and any securities issued after the date hereof upon exercise of such rights and
options and options issued to employees of the Company or any predecessor as a result of
adjustments to options in connection with the reorganization of the Company or any predecessor and
(ii) restricted stock and restricted stock units issued after the date hereof in the ordinary
course of business under employee benefit plans and securities issued after the date hereof in
settlement of any such restricted stock units;
Register, Registered and Registration: shall mean a registration
effected by preparing and (a) filing a Registration Statement in compliance with the Securities Act
(and any post-effective amendments filed or required to be filed) and the declaration or ordering
of effectiveness of such Registration Statement, or (b) filing a Prospectus and/or prospectus
supplement in respect of an appropriate effective Registration Statement;
Registrable Securities: shall mean (A) any shares of Common Stock acquired or held by
an Initial Investor on or after the date hereof (whether or not acquired pursuant to the Stock
Purchase Agreement), including without limitation shares of Common Stock acquired in connection
with the exercise of any Warrants and shares of Common Stock which at any time an Initial Investor
has a right or obligation to purchase under the Stock Purchase Agreement, (B) (i) any securities of
the Company or its Affiliates issued as a dividend or other distribution with respect to, or in
exchange for or in conversion, exercise or replacement of, any Registrable Securities described in
(A) or (C) (the “Initial Securities”) or securities that may become Registrable Securities
by virtue of clause (B)(iii) or (ii) any securities of the Company or its Affiliates offered wholly
or partly in consideration of the Initial Securities or securities that may become Registrable
Securities by virtue of clause (B)(iii) in any tender or exchange offer or (iii) any securities of
the Company or its Affiliates issued as a dividend or other distribution with respect to, or in
exchange for or in conversion, exercise or replacement of or offered wholly or partly in any tender
or exchange offer in consideration of any Registrable Securities described in (B)(i) or (B)(ii),
(C) Warrants acquired or held by an Initial Investor on or after the date hereof and (D) any
Registrable Securities described in (A), (B) or (C) above acquired or held by a Person, for which
rights and obligations have been assigned pursuant to clause (iii) of Section 3(e) and in
accordance with the terms of Section 3(e) hereof; provided, that as to any particular
Registrable Securities, such securities shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such securities has been declared effective under the
Securities Act and such securities have been disposed of pursuant to such Registration Statement,
(ii) after such securities have been sold in accordance with Rule 144 (but not Rule 144A), (iii)
after such securities shall have otherwise been transferred and new securities not subject to
transfer restrictions under any federal securities laws and not bearing any legend restricting
further transfer shall have been delivered by the Company, all applicable holding periods shall
have expired, and no other applicable and legally binding restriction on transfer by the holder
thereof shall exist, (iv) when such securities are eligible for sale pursuant to Rule 144 under the
Securities Act without limitation thereunder on volume or manner of sale, or (v) when such
securities cease to be outstanding;
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Registration Expenses: shall mean (a) any and all expenses incurred by the Company
and its Subsidiaries in effecting any Registration pursuant to this Agreement, including, without
limitation, all (i) Registration and filing fees, and all other fees and expenses payable in
connection with the listing of securities on any securities exchange or automated interdealer
quotation system, (ii) fees and expenses of compliance with any securities or “blue sky” laws
(including fees and disbursements of counsel in connection with “blue sky” qualifications of the
securities registered), (iii) expenses in connection with the preparation, printing, mailing and
delivery of any Registration Statements, Prospectuses, Issuer Free Writing Prospectus and other
documents in connection therewith and any amendments or supplements thereto, (iv) security
engraving and printing expenses, (v) internal expenses of the Company (including, without
limitation, all salaries and expenses of its officers and employees performing legal or accounting
duties), (vi) fees and disbursements of counsel for the Company and fees and expenses for
independent certified public accountants retained by the Company (including the expenses associated
with the delivery by independent certified public accountants of any comfort letters requested
pursuant to the terms hereof), (vii) fees and expenses of any special experts retained by the
Company in connection with such Registration, (viii) fees and expenses in connection with any
review by FINRA of any underwriting arrangements or other terms of the offering, and all reasonable
fees and expenses of any “qualified independent underwriter”, (ix) reasonable fees and
disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding
any underwriting fees, discounts and commissions attributable to the sale of Registrable Securities
and fees and expenses of counsel, (x) costs of printing and producing any agreements among
underwriters, underwriting agreements, any “blue sky” or legal investment memoranda and any selling
agreements and other documents in connection with the offering, sale or delivery of the Registrable
Securities, (xi) transfer agents’ and registrars’ fees and expenses and the fees and expenses of
any other agent or trustee appointed in connection with such offering and (xii) expenses relating
to any analyst or investor presentations or any “road shows” undertaken in connection with the
Registration, marketing or selling of the Registrable Securities and (b) reasonable and documented
fees and expenses of one counsel for all of the Participating Holders, which counsel shall be
selected by the Participating Holder holding the largest number of the Registrable Securities to be
sold in the applicable Registration. Registration Expenses shall not include any out-of-pocket
expenses of the Participating Holders;
Registration Statement: shall mean any registration statement of the Company that
covers Registrable Securities pursuant to the provisions of this Agreement filed with, or to be
filed with, the Commission under the rules and regulations promulgated under the Securities Act,
including the related Prospectus, amendments and supplements to such registration statement,
including pre- and post-effective amendments, and all exhibits, financial information and all
material incorporated by reference in such registration statement;
Required Shelf Registration Statement: shall have the meaning set forth in Section
2(c);
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Rule 144; Rule 144A: shall mean Rule 144 and Rule 144A, respectively, under the
Securities Act (or any successor provisions then in force);
S-1 Registration Statement: shall mean a registration statement of the Company on Form
S-1 (or any comparable or successor form) filed with the Commission registering any Registrable
Securities;
Scheduled Black-Out Period: shall mean the period from and including the last day of
a fiscal quarter of the Company to and including the earliest of (i) the Business Day after the day
on which the Company publicly releases its earnings information for such quarter or annual earnings
information, as applicable, and (ii) the day on which the executive officers and directors of the
Company are no longer prohibited by Company policies applicable with respect to such quarterly
earnings period from buying or selling equity securities of the Company;
security, securities: shall have the meaning set forth in Section 2(a)(1) of the
Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended (or any successor
statute thereto), and the rules and regulations promulgated thereunder;
Selling Expenses: shall mean all underwriting discounts, selling commissions and
stock transfer taxes applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders, other than the fees and expenses of one counsel
for all of the Holders, which shall be paid for by the Company in accordance with the terms set
forth in clause (b) of the definition of “Registration Expenses” set forth herein;
Shelf Registration Statement: shall mean a “shelf” registration statement of the
Company that covers all the Registrable Securities (and may cover other securities of the Company)
on Form S-3 and under Rule 415 or, if the Company is not then eligible to file on Form S-3, on Form
S-1 under the Securities Act, or any successor rule that may be adopted by the Commission, and all
amendments and supplements to such registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits thereto and any document
incorporated by reference therein;
Stock Purchase Agreement: shall have the meaning set forth in the Recitals hereto;
and
Warrants: shall mean the warrants issued by the Company from time to time pursuant to
that certain Warrant Agreement, dated as of November _____, 2010, by and between the Company and
Mellon Investor Services LLC.
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SECTION 2. REGISTRATION RIGHTS
(a) Demand Registration.
(i) Request for Registration. Subject to the limitations and conditions of Section
2(a)(ii), if the Company shall receive from an Initiating Holder(s) a written demand (the
“Demand Notice”) that the Company effect any Registration with respect to all or a part of
the Registrable Securities owned by such Initiating Holder(s) having an estimated aggregate fair
market value of at least $25 million, the Company shall:
(1) promptly give written notice of the proposed Registration to all other Holders in
accordance with the terms of Section 2(b);
(2) use its reasonable best efforts to file a Registration Statement with the
Commission in accordance with the request of the Initiating Holder(s), including without
limitation the method of disposition specified therein and covering resales of the
Registrable Securities requested to be registered, as promptly as reasonably practicable but
no later than (x) in the case of a Registration Statement other than an S-1 Registration
Statement, within 30 days of receipt of the Demand Notice or (y) in the case of an S-1
Registration Statement, within 60 days of receipt of the Demand Notice;
(3) use reasonable best efforts to cause such Registration Statement to be declared or
become effective as promptly as practicable, but in no event later than 60 days after the
date of initial filing of a Registration Statement pursuant to Section 2(a)(i)(2); and
(4) use reasonable best efforts to keep such Registration Statement continuously
effective and in compliance with the Securities Act and usable for resale of such
Registrable Securities for the period as requested in writing by the Initiating Holder(s) or
such longer period as may be requested in writing by any Holder participating in such
registration (which periods shall be extended to the extent of any suspensions of sales
pursuant to Sections 2(a)(ii)(3) or (4));
provided, however, that the Company shall be permitted, with the consent of the
Initiating Holder(s) not to be unreasonably withheld, to file a post-effective amendment or
prospectus supplement to any currently effective Shelf Registration Statement (including, without
limitation, any resale registration statement filed pursuant to the terms of the Stock Purchase
Agreement) in lieu of an additional registration statement pursuant to Section 2(a)(i) to the
extent the Company reasonably determines that the Registrable Securities of the Initiating
Holder(s) may be sold thereunder by such Initiating Holder(s) pursuant to their intended plan of
distribution (in which case such post-effective amendment or prospectus supplement shall not be
counted against the limited number of demand registrations). It shall not be unreasonable if,
following the recommendation of an underwriter, the Initiating Holder(s) do not consent to the
Company filing a post-effective amendment or prospectus supplement to a Shelf Registration
Statement in lieu of an additional registration statement requested by the Initiating Holder(s).
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(ii) Notwithstanding anything to the contrary contained herein, the Company shall not be
obligated to effect, or take any action to effect, any such Registration pursuant to this Section
2(a):
(1) In any particular jurisdiction in which the Company would be required to execute a
general consent to service of process or qualify to do business in effecting such
Registration, qualification or compliance, unless the Company is already subject to service
in such jurisdiction and except as may be required by the Securities Act or applicable rules
or regulations thereunder;
(2) With respect to securities that are not Registrable Securities;
(3) If the Company has notified the Holders that in the good faith judgment of the
Company, it would be materially detrimental to the Company or its security holders for such
registration to be effected at such time, in which event the Company shall have the right to
defer such registration for a period of not more than 60 days; provided, that such
right to delay a registration pursuant to clause (3) shall be exercised by the Company only
if the Company has generally exercised (or is concurrently exercising) similar black-out
rights against holders of similar securities that have registration rights, if any; or
(4) Solely with respect to any Affiliate of the Company, during any Scheduled Black-Out
Period;
provided, that the total number of days that any such suspension, deferral or delay in
registration pursuant to clauses (3) and (4) in the aggregate may be in effect in any
180 day period shall not exceed 60 days. The Company agrees to use its reasonable best efforts to
issue earnings releases as promptly as practicable following the end of quarterly reporting periods
and to otherwise minimize the duration of Scheduled Black-Out Periods.
(iii) The Registration Statement filed pursuant to the request of the Initiating Holder may,
subject to the provisions of Section 2(a)(iv) below, include shares of Common Stock which are held
by Holders and Persons who, by virtue of agreements with the Company (other than this Agreement),
are entitled to include their securities in any such Registration (such Persons, other than
Holders, “Other Stockholders”). In the event the Initiating Holder(s) request a
Registration pursuant to this Section 2(a) in connection with a distribution of Registrable
Securities to its partners or members or any other Holder elects to participate in such
Registration pursuant to Section 2(b) hereof in connection with a distribution of Registrable
Securities to its partners or members, the Registration shall provide for the resale by such
partners or members, if requested by such Holder.
(iv) Underwriting. If the Initiating Holder(s) intend to distribute the Registrable
Securities covered by their request by means of an underwriting, it shall so advise the Company as
a part of the request made pursuant to Section 2(a). If Other Stockholders or Holders, to the
extent they have any registration rights under Section 2(b), request inclusion of their shares of
Common Stock in the underwriting, the Initiating Holder(s) shall offer to include the shares of
Common Stock of such Holders and Other Stockholders in the underwriting and
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may condition such
offer on their acceptance of the further applicable provisions of this Section 2. The Holders
whose Registrable Securities are to be included in such Registration and the Company shall
(together with all Other Stockholders proposing to distribute their shares of Common Stock through
such underwriting) enter into an underwriting agreement in customary form for secondary public
offerings with the managing underwriter or underwriters selected for such underwriting by a
majority-in-interest of the Holders whose Registrable Securities are to be included in such
Registration subject to approval by the Company not to be unreasonably withheld (which underwriters
may also include a non-bookrunning co-manager selected by the Company subject to approval by a
majority-in-interest of the Holders whose Registrable Securities are to be included in such
Registration); provided, however, that such underwriting agreement shall not
provide for indemnification or contribution obligations on the part of any Holder or Other
Stockholder greater than the obligations of the Holders under Section (2)(f)(ii) or Section
2(f)(iv). Notwithstanding any other provision of this Section 2(a), if the managing underwriter or
underwriters advises the Holders in writing that marketing factors require a limitation on the
number of shares to be underwritten, some or all of the securities of the Company held by the Other
Stockholders (other than the Brookfield/Fairholme Holders) shall be excluded from such Registration
to the extent so required by such limitation. If, after the exclusion of such shares held by such
Other Stockholders (other than the Brookfield/Fairholme Holders), further reductions are still
required due to the marketing limitation, the number of Registrable Securities included in the
Registration by each Holder (including the Initiating Holder(s)) and the Brookfield/Fairholme
Holders shall be reduced on a pro rata basis (based on the number of Registrable Securities
requested to be included in such registration by such Holders and the Brookfield/Fairholme Holders,
as applicable), by such minimum number of shares as is necessary to comply with such request. No
Registrable Securities or any other securities excluded from the underwriting by reason of the
underwriter’s marketing limitation shall be included in such Registration. If any Holder or Other
Stockholder who has requested inclusion in such Registration as provided above disapproves of the
terms of the underwriting, such Person may elect to withdraw therefrom by providing written notice
to the Company, the underwriter and the Initiating Holder(s). The securities so withdrawn shall
also be withdrawn from Registration. If the underwriter has not limited the number of Registrable
Securities or other securities to be underwritten, the Company and executive officers and directors
of the Company (whether or not such Persons have registration rights pursuant to Section 2(b)
hereof) may include its or their securities for its or their own account in such Registration if
the managing underwriter or underwriters and the Company so agree and if the number of Registrable
Securities and other securities which would otherwise have been included in such Registration and
underwriting will not thereby be limited.
(v) The number of demand registrations that the Holders shall be entitled to request, and that
the Company shall be obligated to undertake, pursuant to this Section 2(a) shall be unlimited;
provided, that the Company shall not be obligated to undertake more than three underwritten
offerings pursuant to this Section 2 during the term of this Agreement, provided,
further that in no event shall the Company be required to effect more than one underwritten
offering in any twelve-month period pursuant to this Section 2.
(vi) In the case of an underwritten offering under this Section 2(a), the price, underwriting
discount and other financial terms for the Registrable Securities shall be determined by the
Initiating Holder(s).
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(b) Piggyback Registration.
(i) If the Company shall determine to register any of its capital stock (including any
warrants) either (x) for its own account, (y) for the account of the Holders listed in Section 2(a)
pursuant to the terms thereof, or (z) for the account of Other Stockholders (other than (A) a
Registration relating solely to Qualifying Employee Stock, (B) a Registration relating solely to a
Rule 145 transaction under the Securities Act or (C) a Registration on any Registration form which
does not permit secondary sales or does not include substantially the same information as would be
required to be included in a Registration Statement), the Company will, subject to the conditions
set forth in this Section 2(b):
(1) promptly give to each of the Holders a written notice thereof (which shall include
a list of the jurisdictions in which the Company intends to attempt to qualify such
securities under the applicable blue sky or other state securities laws); and
(2) subject to Section 2(b)(ii) below and any transfer restrictions any Holder may be a
party to, include in such Registration (and any related qualification under blue sky laws or
other compliance), and in any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by the Holders. Such written request may
specify all or a part of the Holders’ Registrable Securities and shall be received by the
Company within ten (10) days after written notice from the Company is given under Section
2(b)(i)(1) above. In the event any Holder requests inclusion in a Registration pursuant to
this Section 2(b) in connection with a distribution of Registrable Securities to its
partners or members, the Registration shall provide for the resale by such partners or
members, if requested by such Holder.
(ii) Underwriting. If the Registration of which the Company gives notice is for a
Registered public offering involving an underwriting, the Company shall so advise each of the
Holders as a part of the written notice given pursuant to Section 2(b)(i)(1) above. In such event,
the right of each of the Holders to Registration pursuant to this Section 2(b) shall be conditioned
upon such Holders’ participation in such underwriting and the inclusion of such Holders’
Registrable Securities in the underwriting to the extent provided herein. The Holders whose
Registrable Securities are to be included in such Registration shall (together with the Company and
the Other Stockholders distributing their securities through such underwriting) enter into an
underwriting agreement in customary form for secondary public offerings with the managing
underwriter or underwriters selected for underwriting by the Company (and if the Registration was
initiated by a Holder pursuant to Section 2(a), such underwriters must be selected by the
Initiating Holder(s) and reasonably acceptable to the Company); provided, however,
that such underwriting agreement shall not provide for indemnification or contribution obligations
on the part of any Holder or Other Stockholder greater than the obligations of the Holders under
Section 2(f)(ii) or Section 2(f)(iv). Notwithstanding any other provision of this Section 2(b), if
any Registration in respect of which any Holder is exercising its rights under this Section 2(b)
involves an underwritten public offering (other than a demand Registration pursuant to Section
2(a), in which case the provisions with respect to priority of inclusion in such Registration set
forth in Section 2(a) shall apply) and the managing underwriter or underwriters
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advises the Company
that in its view marketing factors require a limitation on the number of securities to be
underwritten, then there shall be included in such underwritten offering the number or dollar
amount of securities of the Company that in the opinion of the managing underwriter or underwriters
can be sold without adversely affecting such offering, and such number of securities of the Company
shall be allocated for inclusion as follows: (1) first all securities of the Company being sold by
the Company for its own account or by any Person (other than a Holder or a Brookfield/Fairholme
Holder) exercising a contractual right to demand registration; (2) second, all Registrable
Securities requested to be included by the Holders, all Registrable Securities to be included by
the Brookfield/Fairholme Holders and securities of the Company being sold by any Person (other than
a Holder or a Brookfield/Fairholme Holder) with similar piggyback registration rights, pro rata,
based on the number of shares requested to be included in such registration by such Holders, the
Brookfield/Fairholme Holders and such Persons; and (3) third, among any other holders of securities
of the Company requesting such registration, pro rata, based on the number of securities requested
to be included in such registration by each such holder. For the avoidance of doubt, in the event
any Brookfield/Fairholme Holder exercises demand registration rights, such registration is an
underwritten public offering and the managing underwriter advises that marketing factors require a
limitation on the number of securities to be so underwritten, Registrable Securities of any Holders
exercising piggyback rights under this Section 2(b) in connection with such offering and any
securities to be included in such offering by the Brookfield/Fairholme Holders shall be included in
such offering in the same priority and allocated on a pro rata basis, as set forth in clause (2)
above. If any of the Holders or any officer, director or Other Stockholder disapproves of the
terms of any such underwriting, he, she or it may elect to withdraw therefrom by providing written
notice to the Company, the underwriter and the Initiating Holder(s). Any Registrable Securities or
other securities excluded or withdrawn from such underwriting shall be withdrawn from such
Registration.
(c) Required Shelf Registration Statement. From and after the declaration of
effectiveness by the Commission of the Shelf Registration Statement contemplated by Section 7.1(l)
of the Stock Purchase Agreement (the “Required Shelf Registration Statement”), the Company
shall use reasonable best efforts to cause such Required Shelf Registration Statement to be
continuously effective so long as there are any Registrable Securities outstanding. In connection
with the Required Shelf Registration Statement, the Company will, subject to the terms and
limitations of this Section 2, as promptly as reasonably practicable upon notice from any Holder
requesting Registration in accordance with the terms of this Section 2(c), cooperate in any shelf
take-down by amending or supplementing the Prospectus related to such Registration as may be
reasonably requested by such Holder or as otherwise required to reflect the number of Registrable
Securities to be sold thereunder.
(d) Expenses of Registration. All Registration Expenses incurred in connection with
any Registration, qualification or compliance pursuant to this Section 2 shall be borne by the
Company, and all Selling Expenses shall be borne by the Holders of the securities so registered pro
rata on the basis of the number of their shares so registered (or, in the case of fees and
disbursements of counsel and advisors to any Holders that do not constitute Registration Expenses,
by the Holders as incurred).
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(e) Registration Procedures. In the case of each Registration effected by the Company
pursuant to this Section 2, the Company will keep the Participating Holders advised in writing as
to the initiation of each Registration and as to the completion thereof. At its expense, the
Company will:
(i) as promptly as practicable, prepare and file with the Commission such pre- and
post-effective amendments to such Registration Statement, supplements to the Prospectus and such
amendments or supplements to any Issuer Free Writing Prospectus as may be (1) reasonably requested
by the Initiating Holder(s) (if any), (2) reasonably requested by any other Participating Holder
(to the extent such request relates to information relating to such Participating Holder), or
(3) necessary to keep such Registration effective for the period of time required by this
Agreement, and comply with provisions of the applicable securities laws with respect to the sale or
other disposition of all securities covered by such Registration Statement during such period in
accordance with the intended method or methods of disposition by the sellers thereof set forth in
such Registration Statement;
(ii) notify the Participating Holders and the managing underwriter or underwriters, if any,
and (if requested) confirm such advice in writing and provide copies of the relevant documents, as
promptly as practicable after notice thereof is received by the Company (1) when the applicable
Registration Statement or any amendment thereto has been filed or becomes effective, and when the
applicable Prospectus or Issuer Free Writing Prospectus or any amendment or supplement thereto has
been filed, (2) to the extent any of the following relates to the Participating Holders or
information supplied by the Participating Holders, of any written comments by the Commission or any
request by the Commission or any other federal or state governmental authority for amendments or
supplements to such Registration Statement, Prospectus or Issuer Free Writing Prospectus or for
additional information, (3) of the issuance by the Commission of any stop order suspending the
effectiveness of such Registration Statement or any order by the Commission or any other regulatory
authority preventing or suspending the use of any Prospectus or any Issuer Free Writing Prospectus
or the initiation or threatening of any proceedings for such purposes, (4) if, at any time, the
representations and warranties of the Company in any applicable underwriting agreement cease to be
true and correct in all material respects, and (5) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of the qualification of the Registrable
Securities for offering or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(iii) promptly notify the Participating Holders and the managing underwriter or underwriters,
if any, when the Company becomes aware of the happening of any event as a result of which the
applicable Registration Statement, the Prospectus included in such Registration Statement (as then
in effect) or any Issuer Free Writing Prospectus contains any untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary in order to make the
statements therein (in the case of such Prospectus or any Issuer Free Writing Prospectus, in light
of the circumstances under which they were made) not misleading, and when any Issuer Free Writing
Prospectus includes information that may conflict with the information contained in the
Registration Statement, or, if for any other reason it shall be necessary during such time period
to amend or supplement such Registration Statement, Prospectus or Issuer Free Writing Prospectus in
order to comply with the Securities Act and, in either case as promptly as reasonably practicable
thereafter, prepare and file with the Commission, and furnish without charge to the Participating
Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such
Registration Statement, Prospectus or Issuer Free Writing Prospectus which shall correct such
misstatement or omission or effect such compliance;
13
(iv) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order
or other order suspending the use of any Prospectus or any Issuer Free Writing Prospectus;
(v) deliver to each Participating Holder and each underwriter, if any, without charge, as many
copies of the applicable Prospectus (including each preliminary Prospectus), any Issuer Free
Writing Prospectus and any amendment or supplement thereto as such Participating Holder or
underwriter may reasonably request (it being understood that the Company consents to the use of
such Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto by such
Holder and the underwriters, if any, in connection with the offering and sale of the Registrable
Securities thereby) and such other documents as such Participating Holder or underwriter may
reasonably request in order to facilitate the disposition of the Registrable Securities by such
Participating Holder or underwriter;
(vi) subject to the terms set forth in Section 2(a)(ii)(1) and Section 2(c) hereof, on or
prior to the date on which the applicable Registration Statement is declared effective, use its
reasonable best efforts to register or qualify the Registrable Securities covered by such
Registration Statement under such other securities or “blue sky” laws of such jurisdictions in the
United States as any Participating Holder reasonably (in light of such Participating Holder’s
intended plan of distribution) requests and do any and all other acts and things that may be
reasonably necessary or advisable to enable such Participating Holder to consummate the disposition
of the Registrable Securities owned by such Participating Holder pursuant to such Registration
Statement;
(vii) make such representations and warranties to the Participating Holders and the
underwriters or agents, if any, in form, substance and scope as are customarily made by issuers in
underwritten public offerings;
(viii) enter into such customary agreements (including underwriting and indemnification
agreements) and take such other actions as the Initiating Holder(s) or the managing underwriter, if
any, reasonably requests in order to expedite or facilitate the Registration and disposition of
such Registrable Securities;
(ix) use its reasonable best efforts to obtain for delivery to the managing underwriter, if
any, an opinion or opinions from counsel for the Company dated the effective date of the
Registration Statement or, in the event of an underwritten offering, the date of the closing under
the underwriting agreement, in form and substance as is customarily given to underwriters in an
underwritten secondary public offering;
(x) in the case of an underwritten offering, use reasonable best efforts to obtain for
delivery to the Company and the managing underwriter, if any, a “ comfort” letter from the
Company’s independent certified public accountants in form and substance as is customarily given by
independent certified public accountants in an underwritten secondary public offering;
14
(xi) cooperate with each Participating Holder and the underwriters, if any, of such
Registrable Securities and their respective counsel in connection with any filings required to be
made with FINRA;
(xii) use its reasonable best efforts to cause all Registrable Securities covered by the
applicable Registration Statement to be listed or quoted on a national securities exchange or
trading system and each securities exchange and trading system (if any) on which similar securities
issued by the Company are then listed;
(xiii) cooperate with the Participating Holders and the underwriters, if any, to facilitate
the timely preparation and delivery of certificates, with requisite CUSIP numbers, representing
Registrable Securities to be sold and not bearing any restrictive legends;
(xiv) in the case of an underwritten offering, make reasonably available the senior executive
officers of the Company to participate in the customary “road show” presentations that may be
reasonably requested by the managing underwriter in any such underwritten offering and otherwise to
facilitate, cooperate with, and participate in each proposed offering contemplated herein and
customary selling efforts related thereto;
(xv) use its reasonable best efforts to procure the cooperation of the Company’s transfer
agent in settling any offering or sale of Registrable Securities, including with respect to the
transfer of physical security instruments into book-entry form in accordance with any procedures
reasonably requested by the Holders or any managing underwriter(s);
(xvi) use its reasonable best efforts to take such actions as are under its control to become
or remain a well-known seasoned issuer (as such term in defined in Rule 405 under the Securities
Act) and not become an illegible issuer (as such term is defined in Rule 405 under the Securities
Act) during the period when such Registration Statement remains in effect; and
(xvii) make available for inspection by a representative of Participating Holders that are
selling at least five percent (5%) of the Registrable Securities included in such Registration (and
who is named in the applicable prospectus supplement as a Person who may be deemed to be an
underwriter with respect to an offering and sale of Registrable Securities), the managing
underwriter(s), if any, and any attorneys or accountants retained by such Holders or the managing
underwriters(s), at the offices where normally kept, during reasonable business hours, financial
and other records and pertinent corporate documents of the Company, and cause the officers,
directors and employees of the Company to supply all information in each case reasonably requested
by any such representative, managing underwriter, attorney or accountant in connection with such
Registration Statement; provided, that if any such information is identified by the Company
as being confidential or proprietary, each Person receiving such information shall take such
actions as are reasonably necessary to protect the confidentiality of such information and shall
sign customary confidentiality agreements reasonably requested by the Company prior to the receipt
of such information.
(f) Indemnification.
15
(i) Indemnification by the Company. With respect to each Registration which has been
effected pursuant to this Section 2, the Company agrees to indemnify and hold harmless, to the
fullest extent permitted by law, (1) each of the Participating Holders and each of its officers,
directors, limited or general partners and members thereof, (2) each member, limited or general
partner of each such member, limited or general partner, (3) each of their respective Affiliates,
officers, directors, shareholders, employees, advisors, and agents and each Person who controls
(within the meaning of the Securities Act or the Exchange Act) such Persons and each underwriter,
if any, and each person who controls (within the meaning of the Securities Act or the Exchange Act)
any underwriter, against any and all claims, losses, damages, penalties, judgments, suits, costs,
liabilities and expenses (or actions in respect thereof) (collectively, the “Losses”)
arising out of or based on (A) any untrue statement (or alleged untrue statement) of a material
fact contained in any Registration Statement (including any Prospectus or Issuer Free Writing
Prospectus) or any other document incident to any such Registration, qualification or compliance,
(B) 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 the case of any Prospectus
or Issuer Free Writing Prospectus, in light of the circumstances under which they were made not
misleading), or (C) any violation by the Company of the Securities Act or the Exchange Act
applicable to the Company and relating to action or inaction required of the Company in connection
with any such Registration, qualification or compliance, and will reimburse each of the Persons
listed above, for any reasonable and documented legal and any other expenses reasonably incurred in
connection with investigating and defending any such Losses, provided, that the Company
will not be liable in any such case to the extent that any such Losses arise out of or are based on
any untrue statement or omission based upon written information furnished to the Company by the
Participating Holders or underwriter and stated to be specifically for use therein.
(ii) Indemnification by the Participating Holders. Each of the Participating Holders
agrees (severally and not jointly) to indemnify and hold harmless, to the fullest extent permitted
by law, the Company, each of its directors and officers and each underwriter, if any, of the
Company’s securities covered by such a Registration Statement, each Person who controls the Company
(within the meaning of the Securities Act or the Exchange Act) or such underwriter, each other
Participating Holder and each of their respective officers, directors, partners and members, and
each Person controlling such Participating Holder (within the meaning of the Securities Act or the
Exchange Act) against any and all Losses arising out of or based on (A) any untrue statement (or
alleged untrue statement) of a material fact contained in any Registration Statement (including any
Prospectus or Issuer Free Writing Prospectus) or any other document incident to any such
Registration, qualification or compliance (including any notification or the like) made by such
Participating Holder in writing or (B) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements by such
Participating Holder therein not misleading (in the case of any Prospectus or Issuer Free Writing
Prospectus, in light of the circumstances under which they were made not misleading) and will
reimburse the Persons listed above for any reasonable and documented legal or any other expenses
reasonably incurred in connection with investigating or defending any such Losses, in each case to
the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in reliance upon and in conformity with written information
furnished to the Company by such Participating Holder and stated to be specifically for use
therein; provided, however, that the obligations of each of the Participating
Holders hereunder shall be limited to an amount equal to the net proceeds (after giving effect to
any underwriters discounts and commissions) such Participating Holder receives in such
Registration.
16
(iii) Conduct of the Indemnification Proceedings. Each party entitled to
indemnification under this Section 2(f) (the “Indemnified Party”) shall give notice to the
party required to provide indemnification (the “Indemnifying Party”) promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting
therefrom; provided, that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party may participate in
such defense at such party’s expense (unless the Indemnified Party shall have reasonably concluded
that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party
in such action, in which case the fees and expenses of counsel shall be at the expense of the
Indemnifying Party), and provided, further, that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 2(f) unless the Indemnifying Party is prejudiced thereby. It is understood and
agreed that the Indemnifying Party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate
legal counsel for all Indemnified Parties; provided, however, that where the
failure to be provided separate legal counsel could potentially result in a conflict of interest on
the part of such legal counsel for all Indemnified Parties, separate counsel shall be appointed for
Indemnified Parties to the extent needed to alleviate such potential conflict of interest. No
Indemnifying Party, in the defense of any such claim or litigation shall, except with the prior
written consent of each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in
question as an Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f) is held by a court of competent
jurisdiction to be unavailable to an Indemnified Party with respect to any Losses, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to
the amount paid or payable by such Indemnified Party as a result of such Losses in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of
the Indemnified Party on the other in connection with the statements or omissions (or alleged
statements or omissions) which resulted in such Losses, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue (or alleged untrue) statement of
a material fact or the omission (or alleged omission) to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent
17
such statement or omission; provided, however, that the obligations of each of the
Participating Holders hereunder shall be several and not joint and shall be limited to an amount
equal to the net proceeds (after giving effect to any underwriters discounts and commissions) such
Participating Holder receives in such Registration and, provided, further, that 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. For purposes of this Section 2(f)(iv), each Person, if any, who
controls an underwriter or agent within the meaning of Section 15 of the Securities Act shall have
the same rights to contribution as such underwriter or agent and each director of the Company, each
officer of the Company who signed a Registration Statement, and each Person, if any, who controls
the Company or a selling Holder within the meaning of Section 15 of the Securities Act shall have
the same rights to contribution as the Company or such selling Holder, as the case may be.
(v) Subject to the limitations on the Holders’ liability set forth in Section 2(f)(ii) and
Section 2(f)(iv), the remedies provided for in this Section 2(f) are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any Indemnified Party at law or
equity. The remedies shall remain in full force and effect regardless of any investigation made by
or on behalf of such Holder or any Indemnified Party and survive the transfer of such securities by
such Holder.
(vi) The obligations of the Company and of the Participating Holders hereunder to indemnify
any underwriter or agent who participates in an offering (or any Person, if any controlling such
underwriter or agent within the meaning of Section 15 of the Securities Act) shall be conditioned
upon the underwriting or agency agreement with such underwriter or agent containing an agreement by
such underwriter or agent to indemnify and hold harmless the Company, each of its directors and
officers, each other Participating Holder, and each Person who controls the Company (within the
meaning of the Securities Act or the Exchange Act) or such Participating Holder against all Losses,
but only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such underwriter or agent expressly for use in such filings
described in this sentence.
(g) Participating Holders.
(i) Each of the Participating Holders shall furnish to the Company such information regarding
such Participating Holder and its partners and members, and the distribution proposed by such
Holder as the Company may reasonably request in writing and as shall be reasonably requested in
connection with any Registration, qualification or compliance referred to in this Section 2.
(ii) In the event that, either immediately prior to or subsequent to the effectiveness of any
Registration Statement, any Participating Holder shall distribute Registrable Securities to its
partners or members, such Participating Holder shall so advise the Company and provide such
information as shall be necessary to permit an amendment to such Registration Statement to provide
information with respect to such partners or members, as selling security holders. As soon as is
reasonably practicable following receipt of such information, the Company shall file an appropriate
amendment to such Registration Statement reflecting the information so provided. Any incremental
expense to the Company resulting from such amendment shall be borne by such Participating Holder.
18
(iii) Each Holder agrees that at the time that such Holder is a Participating Holder, upon
receipt of any notice from the Company of the happening of any event of the kind described in
Section 2(e)(iii), such Holder shall forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities until such Holder’s
receipt of the copies of a supplemented or amended Prospectus or Issuer Free Writing Prospectus or
until such Holder is advised in writing by the Company that the use of the Prospectus or Issuer
Free Writing Prospectus, as the case may be, may be resumed, and, if so directed by the Company,
such Holder shall deliver to the Company all copies, other than any permanent file copies then in
such Holder’s possession, of the most recent Prospectus or any Issuer Free Writing Prospectus
covering such Registrable Securities at the time of receipt of such notice. If the Company shall
give such notice, the Company shall extend the period during which such Registration Statement
shall be maintained effective by the number of days during the period from and including the date
of the giving of notice pursuant to Section 2(e)(iii) to the date when the Company shall make
available to such Holder a copy of the supplement or amended Prospectus or Issuer Free Writing
Prospectus or is advised in writing that the use of the Prospectus or Issuer Free Writing
Prospectus may be resumed.
(h) Rule 144. With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities to the public
without Registration, the Company agrees to use its reasonable best efforts to file with the
Commission in a timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject to such reporting
requirements (or, if the Company is not required to file such reports, it will, upon the reasonable
request of the Holders holding a majority of the then outstanding Registrable Securities, make
publicly available such necessary information for so long as necessary to permit sales pursuant to
Rules 144 under the Securities Act).
(i) Termination. The registration rights set forth in this Section 2 shall terminate
and cease to be available as to any securities held by an Investor at such time as such Investor
(after owning) first ceases to own any Registrable Securities.
(j) Lock-Up Agreements.
(i) The Company agrees that, if requested by the managing underwriter in any underwritten
public offering contemplated by this Agreement, it will enter into a customary “lock-up” agreement
providing that it will not, directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of any Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock (subject to customary exceptions), other than any such sale or
distribution of Common Stock upon exercise of the Company’s Warrants, for a
19
period of 60 days from
the effective date of the Registration Statement pertaining to such Common Stock; provided,
however, that any such lock-up agreement shall not prohibit the Company from directly or
indirectly (i) selling, offering to sell, granting any option for the sale of, or otherwise
disposing of any Qualifying Employee Stock (or otherwise maintaining its employee benefits plans in
the ordinary course of business) or (ii) issuing Common Stock or securities convertible into or
exchangeable for Common Stock upon exercise or conversion of any warrant (including any other
Warrant), option, right or convertible or exchangeable security issued in connection with the plan
of reorganization. Each Holder shall coordinate with other Holders and the Brookfield Holders and
the Fairholme Holders such that the total number of days that the Company will be subject to such
restrictions (including similar restrictions pursuant to any registration rights agreements with
the Brookfield Holders and the Fairholme Holders) as may be in effect in any 365-day period shall
not exceed 120 days.
(ii) In the event that any Holder is an Affiliate of the Company, if requested by the managing
underwriter in any underwritten public offering permitted by this Agreement, such Holder will enter
into a customary “lock-up” agreement providing that it will not sell, grant any option for the sale
of, or otherwise dispose of any Common Stock outside of such public offering (subject to customary
exceptions) for a period of 60 days from the effective date of the Registration Statement
pertaining to such Common Stock.
(k) Notwithstanding any provision of this Agreement to the contrary, in order for a
Registration to be included as a Registration for purposes of this Section 2, the Registration
Statement in connection therewith shall have been continually effective in compliance with the
Securities Act and usable for resale for the full period established with respect to such
Registration (except in the case of any suspension of sales pursuant to (A) a Scheduled Black-Out
Period, or (B) Section 2(e)(iii) hereof, in which case such period shall be extended to the extent
of such suspension).
(l) Notwithstanding any provision of this Agreement to the contrary, if the Company is
required to file a post-effective amendment to a Registration Statement to incorporate the
Company’s quarterly and annual reports and related financial statements on Form 10-Q and Form 10-K,
the Company shall use its reasonable best efforts to promptly file such post-effective amendment
and may postpone or suspend effectiveness of such Registration Statement for a period not to exceed
thirty (30) consecutive days to the extent the Company determines necessary to comply with
applicable securities laws; provided, that the period by which the Company postpones or
suspends the effectiveness of a shelf Registration Statement pursuant to this Section 2(l) plus any
suspension, deferral or delay pursuant to Section 2(e)(iii) shall not exceed 60 days in the
aggregate in any twelve-month period.
SECTION 3. MISCELLANEOUS
(a) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed entirely
within such State without regard to conflicts of law principles.
(b) Section Headings. The headings of the sections and subsections of this Agreement
are inserted for convenience only and shall not be deemed to constitute a part thereof.
20
(c) Notices.
(i) All communications under this Agreement shall be in writing and shall be delivered
by hand or facsimile or mailed by overnight courier:
(1) if to the Company, to:
| The Xxxxxx Xxxxxx Corporation | ||
| 00000 Xxxx Xxxx, Xxxxx 000 | ||
| Xxxxxx, XX 00000 | ||
| Attention: General Counsel | ||
| Facsimile: (000) 000-0000 | ||
| with a copy (which shall not constitute notice) to: | ||
| Xxxxx Day | ||
| 0000 X. Xxxxxxx Xx. | ||
| Xxxxxx, Xxxxx 00000 | ||
| Attention: Xxxxx X. X’Xxxxxx | ||
| Facsimile: (000) 000-0000 |
(2) if to the Holders, at the address or facsimile number listed on Schedule I hereto,
or at such other address or facsimile number as may have been furnished to the Company in
writing.
(ii) Any notice so addressed shall be deemed to be given: if delivered by hand or
facsimile, on the date of such delivery; and if mailed by overnight courier, on the first
business day following the date of such mailing.
(d) Reproduction of Documents. This Agreement and all documents relating thereto,
including, without limitation, any consents, waivers and modifications which may hereafter be
executed may be reproduced by the Holders by any photographic, photostatic, microfilm, microcard,
miniature photographic or other similar process and the Holders may destroy any original document
so reproduced. The parties hereto agree and stipulate that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative proceeding (whether
or not the original is in existence and whether or not such reproduction was made by the Holders in
the regular course of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(e) Successors and Assigns. Neither this Agreement nor any right or obligation
hereunder may be assigned in whole or in part by any party without the prior written consent of the
other parties hereto and any purported assignment in violation of this provision shall be void;
provided, however, that the rights and obligations hereunder of any Investor may be
assigned, in whole or in part, to any Person who acquires such Registrable Securities that (i) is a
member of the Purchaser Group, (ii) is an Affiliate of any Initial Investor or (iii) is unable to
21
immediately sell, without limitations (including, but not limited to, any limitation on volume or
manner of sale) or restrictions under Rule 144, all Registrable Securities and other shares of
Common Stock held by such Person (provided, that for this clause (iii), any such rights and
obligations may be assigned solely with respect to such Registrable Securities) (each such Person
described in clauses (i), (ii) or (iii), a “Permitted Assignee”). Any assignment pursuant
to this Section 3(e) shall be effective and any Person shall become a Permitted Assignee only upon
receipt by the Company of (1) a written notice from the transferring Holder stating the name and
address of the transferee and identifying the number of shares of Registrable Securities with
respect to which the rights under this Agreement are being transferred and, if fewer than all of
the rights attributable to a Holder hereunder are to be so transferred, the nature of the rights so
transferred and (2) a written instrument by which the transferee agrees to be bound by all of the
terms and conditions applicable to a Holder of such Registrable Securities. Subject to the
foregoing, this Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties.
(f) Several Nature of Commitments. The obligations of each Holder hereunder are
several and not joint and several, and relate only to the Registrable Securities held by such
Holder from time to time. No Holder shall bear responsibility to the Company for breach of this
Agreement or any information provided by any other Holder.
(g) Additional Investors. The parties hereto acknowledge that certain Persons may
become stockholders of the Company and the Company may wish to grant such Persons registration
rights with respect to the shares of Common Stock issued to such Persons. The Company may do so in
its discretion so long as such registration rights are not inconsistent with the registration
rights granted to the Holders hereunder and, if any registrations rights granted are more favorable
than those provided to Holders of Common Stock hereunder, conforming changes reasonably acceptable
to the Purchasers are made to this Agreement to provide Holders hereunder with substantially
similar rights. For the avoidance of doubt, notwithstanding anything to the contrary set forth
herein, Blackstone and its Permitted Assignees shall not be entitled to demand registration rights
(pursuant to Section 2(a) hereof).
(h) Entire Agreement; Amendment and Waiver. This Agreement constitutes the entire
understanding of the parties hereto relating to the subject matter hereof and supersedes all prior
understandings among such parties. This Agreement may be amended with (and only with) the written
consent of the Company and the Holders holding a majority of the then outstanding Registrable
Securities and any such amendment shall apply to all Holders and all of their Registrable
Securities; provided, however, that, notwithstanding the foregoing, no amendment to
this Agreement may adversely affect the rights of a Holder hereunder without the prior written
consent of such Holder; provided, further, that, notwithstanding the foregoing,
additional Holders may become party hereto upon an assignment of rights and obligations hereunder
pursuant to Section 3(e); provided further, however, that other than as set
forth in Section 3(e), the Company may not add additional parties hereto without the consent of
Holders holding a majority of the then outstanding Registrable Securities. The observance of any
term of this Agreement may be waived by the party or parties waiving any rights hereunder;
provided, that any such waiver shall apply to all Holders and all of their Registrable
Securities only if made by Holders holding a majority of then-outstanding Registrable Securities.
22
(i) Injunctive Relief. It is hereby agreed and acknowledged that it will be
impossible to measure in money the damage that would be suffered if the parties fail to comply with
any of the obligations herein imposed on them and that in the event of any such failure, an
aggrieved Person will be irreparably damaged and will not have an adequate remedy at law. Any such
Person shall, therefore, be entitled (in addition to any other remedy to which it may be entitled
in law or in equity) to injunctive relief, including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any of the provisions of this
Agreement, none of the parties hereto shall raise the defense that there is an adequate remedy at
law.
(j) WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND,
THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY ACTIONS, SUITS, DEMAND LETTERS, JUDICIAL, ADMINISTRATIVE OR REGULATORY
PROCEEDINGS, OR HEARINGS, NOTICES OF VIOLATION OR INVESTIGATIONS ARISING OUT OF OR RELATING TO THIS
AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) SUCH PARTY HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER AND (B) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY.
(k) No Inconsistent Agreements. The Company is not currently a party to any agreement
which is, or could be inconsistent with, the rights granted to the Holders by this Agreement.
(l) Severability. In the event that any part or parts of this Agreement shall be held
illegal or unenforceable by any court or administrative body of competent jurisdiction, such
determination shall not affect the remaining provisions of this Agreement which shall remain in
full force and effect.
(m) Counterparts. This Agreement may be executed in two or more counterparts
(including by email or facsimile signature), each of which shall be deemed an original and all of
which together shall be considered one and the same agreement.
(n) Interpretation of this Agreement. Where any provision in this Agreement refers to
action to be taken by any Person, or which such Person is prohibited from taking, such provision
shall be applicable whether such action is taken directly or indirectly by such Person.
[Remainder of Page Intentionally Left Blank]
23
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights Agreement as of the
date first set forth above.
| THE XXXXXX XXXXXX CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
PERSHING SQUARE CAPITAL MANAGEMENT, L.P.
On behalf of each of the Purchasers
By: PS Management GP, LLC
Its: General Partner
On behalf of each of the Purchasers
By: PS Management GP, LLC
Its: General Partner
| By: | ||||
| Name: | ||||
| Title: | ||||
BLACKSTONE REAL ESTATE PARTNERS VI L.P.
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
| By: | ||||
| Name: | ||||
| Title: | ||||
BLACKSTONE REAL ESTATE PARTNERS (AIV) VI L.P.
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
| By: | ||||
| Name: | ||||
| Title: | ||||
[signature page to Pershing/Blackstone Registration Rights Agreement]
BLACKSTONE REAL ESTATE PARTNERS VI.F L.P.
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
| By: | ||||
| Name: | ||||
| Title: | ||||
BLACKSTONE REAL ESTATE PARTNERS VI.TE.1 L.P.
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
| By: | ||||
| Name: | ||||
| Title: | ||||
BLACKSTONE REAL ESTATE PARTNERS VI.TE.2 L.P.
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
| By: | ||||
| Name: | ||||
| Title: | ||||
BLACKSTONE REAL ESTATE HOLDINGS VI L.P.
By: BREP VI Side-by-Side GP L.L.C., its General Partner
By: BREP VI Side-by-Side GP L.L.C., its General Partner
| By: | ||||
| Name: | ||||
| Title: | ||||
BLACKSTONE GGP PRINCIPAL TRANSACTION PARTNERS L.P.
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
By: Blackstone Real Estate Associates VI L.P., its General Partner
By: BREA VI L.L.C., its General Partner
| By: | ||||
| Name: | ||||
| Title: | ||||
[signature page to Pershing/Blackstone Registration Rights Agreement]
Schedule I
Pershing Square, L.P., a Delaware limited partnership
Pershing Square II, L.P., a Delaware limited partnership
Pershing Square International, Ltd. a Cayman Islands exempted company
Pershing Square International V, Ltd., a Cayman Islands exempted company
Pershing Square II, L.P., a Delaware limited partnership
Pershing Square International, Ltd. a Cayman Islands exempted company
Pershing Square International V, Ltd., a Cayman Islands exempted company
Notice to any Purchaser set forth above (which shall constitute notice to each Purchaser set forth
above) shall be made to:
| Attention: | Xxxxxxx X. Xxxxxx Xxx X. Xxxxxxxxx |
|
| Facsimile: | (000) 000-0000 |
Schedule II
Blackstone Real Estate Partners VI L.P., a Delaware limited partnership
Blackstone Real Estate Partners (AIV) VI L.P., a Delaware limited partnership
Blackstone Real Estate Partners VI.F L.P., a Delaware limited partnership
Blackstone Real Estate Partners VI.TE.1 L.P., a Delaware limited partnership
Blackstone Real Estate Partners VI.TE.2 L.P., a Delaware limited partnership
Blackstone Real Estate Holdings VI L.P., a Delaware limited partnership
Blackstone GGP Principal Transaction Partners L.P., a Delaware limited partnership
Blackstone Real Estate Partners (AIV) VI L.P., a Delaware limited partnership
Blackstone Real Estate Partners VI.F L.P., a Delaware limited partnership
Blackstone Real Estate Partners VI.TE.1 L.P., a Delaware limited partnership
Blackstone Real Estate Partners VI.TE.2 L.P., a Delaware limited partnership
Blackstone Real Estate Holdings VI L.P., a Delaware limited partnership
Blackstone GGP Principal Transaction Partners L.P., a Delaware limited partnership
Notice to any Blackstone entity set forth above (which shall constitute notice to each Blackstone
entity set forth above) shall be made to:
Blackstone Real Estate Partners VI L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
| Attention: | X.X. Xxxxxxx | |
| Facsimile: | (000) 000-0000 |
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
| Attention: | Xxxxx X. Xxxxxxx, Esq. | |
| Facsimile: | (000) 000-0000 |
