EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of December 2,
1999, by and among Anthracite Capital, Inc., a Maryland corporation, with its
headquarters located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the
"Company"), and RECP II Anthracite, LLC, a Delaware Limited Liability Company
(together with any assignee or transferee of all of its respective rights
hereunder, the "Investor"), a wholly-owned subsidiary of DLJ Real Estate Capital
Partners II, L.P. ("RECP").
WHEREAS:
A. In connection with the Securities Purchase Agreement by and among the
parties hereto of even date herewith (the "Securities Purchase Agreement"), the
Company has agreed, upon the terms and subject to the conditions contained
therein, to issue and sell to the Investor shares of its preferred stock
("Preferred Stock"), $.001 par value per share, designated and classified 10.5%
Series A Senior Cumulative Convertible Redeemable Preferred Stock (the
"Preferred Shares"), that are convertible into shares (as converted, the
"Conversion Shares") of the Company's common stock, par value $.001 per share
(the "Common Stock"), upon the terms and subject to the limitations and
conditions set forth in the Articles Supplementary to the Articles of
Incorporation of the Company (the "Articles Supplementary"); and
B. To induce the Investor to execute and deliver the Securities Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, or any similar successor statute (collectively, the
"1933 Act"), and applicable state securities laws;
C. The Company registered Preferred Stock and Common Stock pursuant to a
registration statement on Form S-3 filed under Rule 415 of the 1933 Act with the
Securities and Exchange Commission (the "SEC") that was declared effective by
the SEC on September 29, 1999 (Registration No. 333-75473) (the "Existing
Registration Statement").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investor
hereby agrees as follows:
1. DEFINITIONS.
A. As used in this Agreement, the following terms shall have the following
meanings:
(i) "Investor" means RECP II Anthracite, LLC and any transferee or
assignee who agrees to become bound by the provisions of this Agreement in
accordance with Section 9 hereof.
(ii) "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the 1933 Act and pursuant to Rule 415 under the
1933 Act or any successor rule providing for offering securities on a continuous
basis ("Rule 415"), and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange Commission
(the "SEC").
(iii) "Registrable Securities" means (i) the Preferred Shares and
the Conversion Shares issued or issuable upon conversion of or otherwise
pursuant to the Preferred Shares, (ii) any
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securities of the Company issued as (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange by the Company generally for, or in
replacement by the Company generally of, the Preferred Shares or the Conversion
Shares or (iii) any securities issued in exchange for Registrable Securities in
any merger or reorganization of the Company.
(iv) "Registration Period" means the period ending on the earliest
to occur of (i) the sale of all the Registrable Securities under an effective
Registration Statement or (ii) the date on which all of the Registrable
Securities are eligible for sale pursuant to Rule 144 under the 1933 Act and can
be sold in one transaction in accordance with the volume limitations contained
in Rule 144(e)(1)(i) under the 1933 Act, if applicable.
(v) "Registration Statement(s)" means a registration statement(s) of
the Company under the 1933 Act covering the resale of the Registrable
Securities, including the Existing Registration Statement as amended by a
post-effective amendment allowing the Registrable Securities to be included in
the Existing Registration Statement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Securities Purchase Agreement.
2. REGISTRATION.
A. DEMAND REGISTRATION. The Company, within sixty (60) days of the date
hereof, shall prepare and file with the SEC a Registration Statement on Form S-3
(or, if Form S-3 is not then available, on such form of Registration Statement
as is then available to effect a registration of the Registrable Securities)
(the "Investor Registration Statement"), covering the resale of the Registrable
Securities and complying as to form in all material respects with applicable SEC
rules. The number of shares of Preferred Stock initially included in such
Registration Statement shall equal the number of Preferred Shares issued. The
number of shares of Common Stock initially included in such Registration
Statement shall equal the number of Conversion Shares that are then issuable
upon conversion of the Preferred Stock. The Registration Statement, to the
extent allowable under the 1933 Act and the rules and regulations promulgated
thereunder (including Rule 416), shall state that such Registration Statement
also covers such indeterminate number of additional shares of Common Stock as
may become issuable upon conversion of the Preferred Shares to prevent dilution
resulting from stock splits, stock dividends or similar transactions, and to the
extent necessary such Registration Statement shall be amended from time to time
to cover additional Registrable Securities of the Investor.
B. UNDERWRITTEN OFFERING. If any offering pursuant to a Registration
Statement pursuant to Section 2(A) hereof involves an underwritten offering
pursuant to Section 2E herein, the Investor shall have the right to select one
legal counsel and an investment banker or bankers and manager or managers to
administer the offering, which investment banker or bankers or manager or
managers and legal counsel shall be reasonably satisfactory to the Company.
C. PIGGY-BACK REGISTRATIONS. Subject to the last sentence of this Section
2(C), if at any time prior to the expiration of the Registration Period, the
Company shall determine to file with the SEC a Registration Statement relating
to an offering for its own account or the account of others under the 1933 Act
of any of its equity securities (other than on Form S-4 or Form S-8 or their
then equivalents relating to equity securities to be issued solely in connection
with any acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans), the Company shall
send to the Investor who is entitled to registration rights under this Section
2(C) written notice of such determination and, if within ten (10) days after the
date of such written notice, the Investor
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shall so request in writing, the Company shall include in such Registration
Statement all or any part of the Registrable Securities the Investor requests to
be registered, except that if, in connection with any underwritten public
offering for the account of the Company the managing underwriter(s) thereof
shall impose a limitation on the number of shares of Common Stock which may be
included in the Registration Statement because, in the good faith judgment of
such underwriter(s), marketing or other factors dictate that such limitation is
necessary to facilitate public distribution, then the Company shall be obligated
to include in such Registration Statement only such limited number of the
Registrable Securities with respect to which the Investor has requested
inclusion hereunder as the underwriter shall advise. Any exclusion of
Registrable Securities shall be made pro rata among the Investor and any other
holders of Registrable Securities seeking to include Registrable Securities in
proportion to the number of Registrable Securities sought to be included by the
Investor and such other holders of Registrable Securities; provided, however,
that the Company shall not exclude any Registrable Securities unless the Company
has first excluded all outstanding securities, the holders of which are not
entitled to demand registration rights in such Registration Statement or are not
entitled to pro rata inclusion with the Registrable Securities; and provided,
further, however, that any exclusion of Registrable Securities shall be made pro
rata with holders of other securities having the right to include such
securities in the Registration Statement other than holders of securities
entitled to inclusion of their securities in such Registration Statement by
reason of demand registration rights. No right to registration of Registrable
Securities under this Section 2(C) shall be construed to limit any registration
required under Section 2(A) hereof. If an offering in connection with which the
Investor is entitled to registration under this Section 2(C) is an underwritten
offering, then the Investor whose Registrable Securities are included in such
Registration Statement shall, unless otherwise agreed by the Company, offer and
sell such Registrable Securities in an underwritten offering using the same
underwriter or underwriters and, subject to the provisions of this Agreement, on
the same terms and conditions as other shares of Common Stock included in such
underwritten offering.
Notwithstanding anything to the contrary set forth herein, the
registration rights of the Investor pursuant to this Section 2(C) shall only be
available in the event and at such times as the Company fails to timely file,
obtain effectiveness or maintain effectiveness of any Registration Statement to
be filed pursuant to Section 2(A) in accordance with the terms of this
Agreement; provided, however, that if the Company files a Registration Statement
pursuant to this Section 2(C), the Company shall take the steps necessary to
obtain the effectiveness of or shall take no steps to cause the lapse in
effectiveness of, as the case may be, of any such Registration Statement even if
a Registration Statement filed pursuant to Section 2(A) or this Section 2(C)
becomes effective; provided, further, however, that nothing contained in the
preceding two provisos shall (i) be construed as requiring the Company to
register or maintain the registration of any of the Registrable Securities
pursuant to more than one Registration Statement; or (ii) diminish the Company's
obligation to register all of the Registrable Securities.
D. ELIGIBILITY FOR FORM S-3. The Company represents and warrants that it
currently complies with the registrant eligibility and transaction requirements
for the use of Form S-3 for registration of the sale by the Investor and of the
Registrable Securities and the Company shall use its best efforts to file all
reports required to be filed by the Company with the SEC in a timely manner so
as to maintain such eligibility for the use of Form S-3 until the expiration of
the Registration Period.
3. OBLIGATIONS OF THE COMPANY. In connection with the registration of the
Registrable Securities, the Company shall have the following obligations:
A. The Company shall prepare and file with the SEC a Registration
Statement with respect to the number of Registrable Securities provided in
Section 2(A), and thereafter use its best efforts to cause such Registration
Statement relating to the Registrable Securities to become effective as soon as
practicable after such filing (but in no event later than ninety (90) days after
the date on which the
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Investor Registration Statement was filed with the SEC), and keep the Investor
Registration Statement effective, free of material misstatements or omissions
(including the preparation and filing of any amendments and supplements
necessary for such purpose), pursuant to Rule 415 at all times until the
expiration of the Registration Period and as a result of the event or
circumstance described in the foregoing clause, the legend with respect to
transfer restrictions required under the Agreement is removed. The Investor
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall comply with all applicable SEC rules and
regulations and shall not contain any 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 not misleading (except for an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact made in reliance on and in conformity with written information
furnished to the Company by or on behalf of the Investor specifically for use
therein).
B. The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Investor
Registration Statement and the prospectus used in connection with the Investor
Registration Statement as may be necessary to keep the Investor Registration
Statement effective at all times during the Registration Period except for
Allowed Delays, and, during such period, comply with the provisions of the 1933
Act with respect to the disposition of all Registrable Securities of the Company
covered by the Investor Registration Statement until such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof as set forth in the
Registration Statement.
C. The Company shall furnish to the Investor whose Registrable Securities
are included in a Registration Statement and its legal counsel, without charge,
(i) promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company, one copy of each Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each amendment
or supplement thereto, and, in the case of the Investor Registration Statement
referred to in Section 2(A), each letter written by or on behalf of the Company
to the SEC or the staff of the SEC, and each item of correspondence from the SEC
or the staff of the SEC, in each case relating to such Registration Statement
(other than any portion thereof which contains information for which the Company
has sought confidential treatment), and (ii) such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as the Investor may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by the Investor. The Company will promptly notify the Investor by
facsimile of the effectiveness of each Registration Statement or any
post-effective amendment. The Company will promptly respond to any and all
comments received from the SEC, with a view towards causing each Registration
Statement or any amendment thereto to be declared effective by the SEC as soon
as practicable and shall file an acceleration request as soon as practicable
following the resolution or clearance of all SEC comments or, if applicable,
following notification by the SEC that any such Registration Statement or any
amendment thereto will not be subject to review.
D. The Company shall use its best efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement prior to the time
that the Registration Statement is declared effective by the SEC under all other
securities or "blue sky" laws of all jurisdictions in the United States as the
Investor reasonably requests, (ii) prepare and file in those jurisdictions such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (a) qualify to do
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business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(D), (b) subject itself to general taxation in any such
jurisdiction and (c) file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify the Investor of the receipt by
the Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities for sale
under the securities or "blue sky" laws of any jurisdiction in the United States
or its receipt of actual notice of the initiation or threatening of any
proceeding for such purpose.
E. In the event of an underwritten offering of the Registrable Securities,
the Investor shall select underwriters for the offering and the Company shall
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, including, without limitation, customary indemnification and
contribution obligations, with the underwriters of such offering. The Company
shall only be obligated to effect two such underwritten offerings pursuant to
Section 2(B) hereof.
F. As promptly as practicable after becoming aware of such event, the
Company shall notify the Investor of the happening of any event, of which the
Company has knowledge, as a result of which the prospectus included in any
Registration Statement, as then in effect, includes an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and use its best efforts promptly to prepare
a supplement or amendment to any Registration Statement or the related
prospectus or any document incorporated therein by reference or file any other
required document to correct such untrue statement or omission, and deliver such
number of copies of such supplement or amendment to the Investor as the Investor
may reasonably request; provided that, at any time after the date which is
thirty (30) days after the Registration Statement is declared effective by the
SEC for not more than thirty (30) consecutive calendar days, the Company may
delay the disclosure of material non-public information concerning the Company
(as well as prospectus or Registration Statement updating) the disclosure of
which would materially impede, delay or interfere with any pending material
financing, acquisition or corporate reorganization or other material corporate
development involving the Company or any of its subsidiaries, or require the
disclosure of important information which the Company has a material business
purpose for preserving as confidential or the disclosure of which would
materially impede the Company's ability to consummate a significant transaction
(an "Allowed Delay"); provided that no more than three such Allowed Delays may
be made in any twelve (12) month period; provided, further, that the Company
shall promptly (i) notify the Investor in writing of the existence of an Allowed
Delay and (ii) advise the Investor in writing to cease all sales under such
Registration Statement until the end of the Allowed Delay. Upon expiration of
the Allowed Delay, the Company shall again be bound by the first sentence of
this Section 3(F) with respect to the information giving rise thereto.
G. The Company shall use its best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of any Registration Statement,
and, if such an order is issued, to obtain the withdrawal of such order at the
earliest possible moment and to notify the Investor (or, in the event of an
underwritten offering, the managing underwriters) of the issuance of such order
and the resolution thereof.
H. The Company shall permit a single firm of counsel designated by the
holders whose shares make up at least a majority of the Registrable Securities
included in such Registration Statement to review such Registration Statement
and all amendments and supplements thereto (as well as all requests for
acceleration or effectiveness thereof), other than documents filed pursuant to
the Securities Exchange Act of 1934, as amended, a reasonable period of time
(but not less than five (5) business days prior to the filing of such
Registration Statement or supplement or amendment thereto) prior to their filing
with the SEC, and not file any document in a form to which such counsel
reasonably objects and will not request acceleration of such Registration
Statement without prior notice to such counsel. The sections of such
Registration Statement covering information with respect to the Investor, the
Investor's beneficial
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ownership of securities of the Company or the Investor's intended method of
disposition of Registrable Securities shall conform in all material respects to
the information provided to the Company by the Investor.
I. The Company shall make generally available to its security holders as
soon as practicable, but not later than ninety (90) days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 0000 Xxx) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of the Registration Statement.
J. The Company shall make available for inspection by (i) any underwriter
participating in any disposition pursuant to a Registration Statement, (ii) one
firm of attorneys and one firm of accountants or other agents retained by the
Investor, and (iii) one firm of attorneys retained by all such underwriters
(collectively, the "Inspectors") all pertinent financial and other records, and
pertinent corporate documents and properties of the Company (collectively, the
"Records"), as shall be reasonably deemed necessary by each Inspector to enable
each Inspector to exercise its due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information which any
Inspector may reasonably request for purposes of such due diligence; provided,
however, that each Inspector shall hold in confidence and shall not make any
disclosure (except to an Investor or another Inspector) of any Record or other
information which the Company determines in good faith to be confidential, and
of which determination the Inspectors are so notified, unless (a) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
any Registration Statement, (b) the release of such Records is ordered pursuant
to a subpoena or other order from a court or government body of competent
jurisdiction, or (c) the information in such Records has been made generally
available to the public other than by disclosure in violation of this or any
other agreement. The Company shall not be required to disclose any confidential
information in such Records to any Inspector until and unless such Inspector
shall have entered into confidentiality agreements (in form and substance
reasonably satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3(J). The Investor agrees that it
shall, upon learning that disclosure of such Records is sought in or by a court
or governmental body of competent jurisdiction or through other means, give
prompt notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the Records deemed confidential. Nothing herein (or in any other
confidentiality agreement between the Company and the Investor) shall be deemed
to limit the Investor's ability to sell Registrable Securities in a manner which
is otherwise consistent with applicable laws and regulations.
K. The Company shall hold in confidence and not make any disclosure of
information concerning the Investor provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by
disclosure in violation of this or any other agreement. The Company agrees that
it shall, upon learning that disclosure of such information concerning the
Investor is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Investor prior to
making such disclosure, and allow the Investor, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, such information.
L. The Company shall cause all the Registrable Securities covered by the
Registration Statement to be listed on each national securities exchange on
which securities of the same class or series issued by the Company are then
listed, if any, if the listing of such Registrable Securities is then permitted
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under the rules of such exchange. Additionally, the Company shall, promptly
after the registration of the Conversion Shares with the SEC, apply to list the
Conversion Shares on the New York Stock Exchange.
M. The Company shall provide a transfer agent and registrar, which may be
a single entity, for the Registrable Securities not later than the effective
date of the Registration Statement.
N. The Company shall cooperate with the Investor and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends) representing
Registrable Securities to be offered pursuant to a Registration Statement and
enable such certificates to be in such denominations or amounts, as the case may
be, as the managing underwriter or underwriters, if any, or the Investor may
reasonably request and registered in such names as the managing underwriter or
underwriters, if any, or the Investor may request. Additionally, management of
the Company shall make itself reasonably available in order to cooperate in good
faith with the managing underwriter or underwriters in connection with any road
show, presentations or conference calls undertaken in connection with an
underwritten offering pursuant to Section 2(B) hereof.
O. The Company shall, if reasonably requested by the Investor or
Investor's counsel, incorporate as promptly as practicable in a prospectus
supplement or post-effective amendment such information as such Investor or
Investor's counsel requests to be included therein, including, without
limitation, with respect to the Registrable Securities being sold by the
Investor to any underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and any other terms of any
underwritten offering of the Registrable Securities to be sold in such offering,
and the Company shall as promptly as practicable make all required filings of
such prospectus supplement or post-effective amendment.
P. The Company shall reasonably cooperate with the Investor in good faith
to facilitate the timely preparation and delivery of certificates (which shall
not bear any restrictive legends unless required under applicable law or the
Company's Articles of Incorporation) representing Registrable Securities sold
under a Registration Statement to the purchasers thereof, and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or the Investor may request
and keep available and make available to the Company's transfer agent prior to
the effectiveness of such Registration Statement a supply of such certificates.
Q. The Company shall enter into such customary agreements (including, if
applicable, an underwriting agreement in customary form) and take such other
actions as the Investor or the underwriters participating in an underwritten
public offering, if any, may reasonably request in order to expedite or
facilitate the disposition of Registrable Securities. The Investor may, at its
option, require that any or all of the representations, warranties and covenants
of the Company to or for the benefit of any underwriters also be made to and for
the benefit of the Investor.
R. The Company shall furnish to the Investor whose Registrable Securities
are included in the offering and to each underwriter, if any, if requested by
the Investor or underwriter, a signed counterpart, addressed to the Investor or
underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering matters of the type customarily
covered by opinions or comfort letters, as the case may be.
S. The Company shall, during the period when the prospectus is required to
be delivered under the Securities Act, file in a timely fashion all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act.
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T. The Company covenants that it will file any reports required to be
filed by it under the Securities Act and the Exchange Act, and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Investor, make
publicly available other information so long as necessary to permit sales of the
Registrable Securities under Rule 144 under the Securities Act), and it will
take such further action as any Investor may reasonably request, all to the
extent required from time to time to enable such Investor to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any successor rule or similar
provision or regulation hereafter adopted by the Commission. Upon the request of
any Investor, the Company will deliver to such Investor a written statement as
to whether it has complied with such requirements.
U. The Company covenants that it will file all reports required to be
filed by it under the Securities Act and the Exchange Act, and the rules and
regulations adopted by the Commission thereunder (or if the Company is not
required to file such reports, it will, upon the request of any Investor, make
available other information so long as necessary to permit sales of the
Registrable Securities pursuant to Rule 144A under the Securities Act), and it
will take such further action as any Investor may request, all to the extent
required from time to time to enable such Investor to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144A, as such rule may be amended from
time to time, or (b) any successor rule or similar provision or regulation
hereafter adopted by the Commission.
4. OBLIGATIONS OF THE INVESTOR. In connection with the registration of the
Registrable Securities, the Investor shall have the following obligations.
A. The Investor shall promptly furnish (but in no event later than three
(3) business days prior to the filing of any Registration Statement or
amendment(s) or supplement(s) thereto with respect to the Registrable
Securities) to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request. At least six (6)
business days prior to the anticipated filing date of the Registration Statement
and any amendment(s) or supplement(s) thereto, the Company shall notify the
Investor of the information the Company reasonably requires from the Investor
and the Investor shall supply or cause its representatives to supply such
information within three (3) business days; provided, however, that if the
Investor fails to deliver to the Company the information referred to in the
first sentence of this paragraph prior to the filing of the Registration
Statement or amendment(s) or supplement(s) thereto, the Investor shall bear the
cost of any additional Registration Statement or amendment(s) or supplement(s)
thereto which the Company is required to file due solely to such failure;
provided, however, that the failure of the Investor to provide such information
shall not delay or otherwise prevent the Company from the filing of the
Registration Statement or amendment(s) or supplement(s) thereto.
B. The Investor, by the Investor's acceptance of the Registrable
Securities for inclusion in a Registration Statement, agrees to cooperate with
the Company as reasonably requested by the Company in connection with the
preparation and filing of a Registration Statement hereunder, unless the
Investor has notified the Company in writing of the Investor's election to
exclude all of the Investor's Registrable Securities from a Registration
Statement.
C. In the event the Investor determines to engage the services of an
underwriter, the Investor agrees to enter into and perform the Investor's
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations,
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with the managing underwriter of such offering and take such other actions as
are reasonably required in order to expedite or facilitate the disposition of
the Registrable Securities, unless the Investor has notified the Company in
writing of such Investor's election to exclude all of the Investor's Registrable
Securities from the Registration Statement.
D. The Investor agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(F) or 3(G), the
Investor will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until the Investor's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3(F) or 3(G) or notice from the Company that
such supplement or amendment is not necessary and, if so directed by the
Company, the Investor shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies in the Investor's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice.
E. No Investor may participate in any underwritten registration hereunder
unless the Investor (i) agrees to sell the Investor's Registrable Securities on
the basis provided in any underwriting arrangements in usual and customary form
entered into by the Company and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and (iii)
agrees to pay its pro rata share of all underwriting discounts and commissions
and any expenses in excess of those payable by the Company pursuant to Section 5
below.
F. At any time after the date which is thirty (30) days after the date on
which the Registration Statement is declared effective by the SEC, in connection
with any firm commitment underwritten public offering of the Common Stock (other
than any registration by the Company on Form S-4 or S-8, as the case may be, or
a successor or substantially similar form, of (A) an employee stock option,
stock purchase or compensation plan or of securities issued or issuable pursuant
to any such plan or (B) a dividend reinvestment plan) resulting in gross
proceeds to the Company of at least $10,000,000 led by at least one underwriter
of nationally recognized standing (a "Qualified Public Offering"), the Investor
agrees, if requested in writing by the managing underwriter or the underwriters
administering such offering, not to sell Registrable Securities pursuant to the
Registration Statement in any public sale for a period commencing on the seventh
day prior to the expected effective date of the registration statement covering
such Qualified Public Offering or the date on which the proposed offering is
expected to commence (which date shall be stated in such notice) and ending on
the date specified by such managing underwriter in such written request to the
Investor, which date shall not be later than forty-five (45) days after such
expected date of effectiveness or the commencement of the offering, as the case
may be (the "Underwriters Lock-Up Period"); provided that such underwriters in
good faith determine that the sale of the Registrable Securities under a
Registration Statement would have a material adverse effect on such Qualified
Public Offering; and further, provided that all of the Company's directors,
executive officers and affiliates shall have also agreed to similar
restrictions. The Investor shall be subject to no more than one such restriction
in each twelve (12) month period during the Registration Period.
5. EXPENSES OF REGISTRATION. All reasonable expenses, other than underwriting
discounts and commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
SEC, state and stock exchange securities registration, listing and qualification
fees, all expenses incurred in connection with the preparation, printing and
distribution of the Registration Statement and prospectus (including all
expenses incurred with the delivery to the Investor of such number of copies of
any prospectus as the Investor may reasonably request), the fees and
disbursements of counsel for the Company and the independent public accountants
of the Company, shall be borne by the Company (provided that the fees and
disbursements of the counsel selected by the
(Page 107 of 133)
Investor pursuant to Section 3(H) shall be paid by the Investor), whether or not
the Registration Statement is declared effective by the SEC.
6. INDEMNIFICATION. In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
A. To the extent permitted by law, the Company will indemnify, hold
harmless and defend: (i) the Investor who holds such Registrable Securities,
(ii) the directors, officers, partners, trustees, stockholders, employees,
agents and each person who controls the Investor within the meaning of the 1933
Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"), if any,
(iii) any underwriter (as defined in the 0000 Xxx) for the Investor (subject to
the Company receiving customary indemnification from any such underwriter), and
(iv) the directors, officers, partners, employees and each person who controls
any such underwriter within the meaning of the 1933 Act or the 1934 Act, if any
(each, an "Indemnified Person"), against any joint or several losses, claims,
damages, liabilities or expenses (collectively, together with actions,
proceedings or inquiries by any regulatory or self-regulatory organization,
whether commenced or threatened, in respect thereof, "Claims") to which any of
them may become subject insofar as such Claims arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material fact in a
Registration Statement (or any amendment thereto), including all documents
incorporated therein by reference, or the omission or alleged omission to state
therein a material fact required to be stated or necessary to make the
statements therein not misleading; (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus if used
prior to the effective date of such Registration Statement, or contained in the
final prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC), including all documents
incorporated therein by reference, or the omission or alleged omission to state
therein any material fact necessary to make the statements made therein, in
light of the circumstances under which the statements therein were made, not
misleading; or (iii) any violation or alleged violation by the Company of the
1933 Act, the 1934 Act, any other securities laws including without limitation,
any state securities laws, or any rule or regulation thereunder relating to the
offer or sale of the Registrable Securities (the matters in the foregoing
clauses (i) through (iii) being, collectively, "Violations"). Subject to the
restrictions set forth in Section 6(C) with respect to the number of legal
counsel, the Company shall reimburse the Indemnified Person, promptly as such
expenses are incurred and are due and payable, for any reasonable legal fees or
other reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by any Indemnified Person or underwriter for such Indemnified Person
expressly for use in connection with such Registration Statement or preliminary
or final prospectus or any such amendment thereof or supplement thereto; (ii)
shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld; and (iii) with respect to any preliminary
prospectus, shall not inure to the benefit of any Indemnified Person if the
untrue statement or omission or alleged untrue statement or omission of a
material fact contained in the preliminary prospectus was corrected on a timely
basis in the prospectus, as then amended or supplemented, such corrected
prospectus was timely made available by the Company pursuant to Section 3(C)
hereof, and the Indemnified Person was promptly advised in writing not to use
the incorrect prospectus prior to the use giving rise to a Violation and such
Indemnified Person, notwithstanding such advice, used it. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Indemnified Person and shall survive the transfer of the
Registrable Securities by the Investor.
B. In connection with any Registration Statement in which the Investor is
participating, the Investor agrees to indemnify, hold harmless and defend, to
the same extent and in the same manner set
(Page 108 of 133)
forth in Section 6(A), the Company, each of its directors, each of its officers
who signs the Registration Statement, each person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act, any underwriter and
any other stockholder selling securities pursuant to the Registration Statement
or any of its directors or officers or any person who controls such stockholder
or underwriter within the meaning of the 1933 Act or the 1934 Act (an
"Indemnified Party"), against any Claim to which any of them may become subject,
under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim arises out
of or is based upon any Violation by the Investor, in each case to the extent
(and only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished to the Company by the Investor
expressly for use in connection with such Registration Statement or preliminary
or final prospectus or any such amendment or supplement thereof or thereto; and
subject to Section 6(C) the Investor will reimburse any legal or other expenses
promptly as such expenses are incurred and are due and payable reasonably
incurred by them in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this Section 6(B)
shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Investor, which consent shall
not be unreasonably withheld; provided, further, however, that the Investor
shall be liable under this Agreement (including this Section 6(B) and Section 7)
for only that amount as does not exceed the net proceeds to the Investor as a
result of the sale of Registrable Securities pursuant to such Registration
Statement (after deducting the amounts already paid to Indemnified Parties by
the Investor pursuant to this Section 6(B) or Section 7). Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such Indemnified Party and shall survive the transfer of the
Registrable Securities by the Investor pursuant to Section 9. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(B) with respect to any preliminary prospectus shall
not inure to the benefit of any Indemnified Party if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
on a timely basis in the prospectus, as then amended or supplemented.
C. Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action (including any
governmental action), such Indemnified Person or Indemnified Party shall, if a
Claim in respect thereof is to be made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof at such indemnifying party's or parties' own expense with
counsel reasonably satisfactory to the Indemnified Person or the Indemnified
Party, as the case may be; provided, however, that an indemnifying party shall
not be entitled to assume such defense and an Indemnified Person or Indemnified
Party shall have the right to retain its own counsel with the fees and expenses
to be paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential conflict of interest under applicable
rules of professional conduct or that there may be legal defenses available to
the Indemnified Party which are different from or in addition to those available
to the indemnifying party. The indemnifying party shall pay for up to one
separate legal counsel for the Indemnified Persons or the Indemnified Parties,
as applicable, and such legal counsel shall be selected by the Investor, if the
Investor is entitled to indemnification hereunder, or the Company, if the
Company is entitled to indemnification hereunder, as applicable. If the
indemnifying party is not entitled to assume the defense of such action or
proceeding, the indemnifying party's counsel shall be entitled to conduct the
indemnifying party's defense, and counsel for the Indemnified Party shall be
entitled to conduct the defense of the Indemnified Party, it being understood
that both such counsel will cooperate with each other to conduct the defense of
such action or proceeding as efficiently as possible. If the indemnifying party
(i) is not so entitled to assume the defense of such action, (ii) does not
assume such defense, after having received the notice referred to in the first
sentence of this paragraph, or (iii) fails to employ counsel that is reasonably
satisfactory to the
(Page 109 of 133)
Indemnified Party, after having received the notice referred to in the first
sentence of this paragraph, the indemnifying party will pay the reasonable fees
and expenses of counsel for the Indemnified Party. In such event, however, the
indemnifying party will not be liable for any settlement effected without the
written consent of the indemnifying party, which consent shall not be
unreasonably withheld. No indemnifying party shall, without the consent of the
Indemnified Party, consent to entry of any judgment or enter into a settlement
that 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. If an indemnifying party is entitled to
assume, and assumes, the defense of such action or proceeding in accordance with
this paragraph, the indemnifying party shall not be liable for any fees and
expenses of counsel for the Indemnified Party incurred thereafter in connection
with such action or proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is actually prejudiced in its ability to
defend such action. The indemnification required by this Section 6 shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
D. The indemnity agreements contained herein shall be in addition to (i)
any cause of action or similar right of the Indemnified Party or Indemnified
Person against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to law.
7. CONTRIBUTION. To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that
(i) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in
Section 6, (ii) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any seller of Registrable Securities who was not
guilty of such fraudulent misrepresentation, and (iii) contribution (together
with any indemnification or other obligations under this Agreement) by any
seller of Registrable Securities shall be limited in amount to the net amount of
proceeds received by such seller from the sale of such Registrable Securities
pursuant to such Registration Statement (after deducting amounts already paid to
indemnified parties by the Investor under Sections 6(B) and 7).
8. ASSIGNMENT OF REGISTRATION RIGHTS. This Agreement shall inure to the benefit
of and be binding on the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Investors. If any successor, assignee or transferee of
the Investor shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by all of the terms and provisions hereof.
9. AMENDMENT OF REGISTRATION RIGHTS. Provisions of this Agreement may be amended
and the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the holder(s) of a majority in interest of the
Registrable Securities; provided, however, that for purposes of this Agreement,
Registrable Securities that are owned, directly or indirectly, by either the
Company or an affiliate of the Company shall not be deemed outstanding. Any
amendment or waiver effected in accordance with this Section 9 shall be binding
upon the Investor and the Company.
10. MISCELLANEOUS.
(Page 110 of 133)
A. A person or entity is deemed to be a holder of Registrable Securities
whenever such person or entity owns of record or beneficially such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of an instruction,
notice or election received from the registered owner of such Registrable
Securities and the Company shall have no liability for following instructions
from the registered owner of the Registrable Securities and the registered owner
by providing such instructions agrees to indemnify the Company in accordance
with the provisions of Section 6(B).
B. Any notices required or permitted to be given under the terms hereof
shall be sent overnight by express mail or delivered personally or by courier
(including an overnight delivery service) or by facsimile and shall be effective
upon receipt, if delivered by overnight express mail, personally or by courier
(including an overnight delivery service) or by facsimile, in each case
addressed to a party. The addresses for such communications shall be:
If to the Company:
Anthracite Capital, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: 212-735-2000
If to the Investor: to
RECP II Anthracite, LLC
x/x XXX Xxxx Xxxxxx Xxxxxxx Xxxxxxxx XX, X.X.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
With copy to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
Facsimile: 000-000-0000
C. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(Page 111 of 133)
D. This Agreement shall be enforced, governed by and interpreted in
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws. The parties agree that all disputes between any
of them arising out of, connected with, related to, or incidental to the
relationship established between them in connection with this Agreement, and
whether arising in law or in equity or otherwise, shall be resolved by the
federal or state courts located in New York, New York. Nothing herein shall
affect the right of any party to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against the other in
any other jurisdiction. In addition, each of the parties hereto consents to
submit to the personal jurisdiction of any federal or state court located in the
state of New York in the event that any dispute arises out of this Agreement.
The parties, for themselves and their respective affiliates, hereby irrevocably
waive all right to a trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to the
actions of the parties or their respective affiliates pursuant to this Agreement
in the negotiation, administration, performance or enforcement thereof.
E. This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof.
F. Subject to the requirements of Section 8 hereof, this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
G. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
H. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
I. Each party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
J. Each of the parties shall pay its own costs and expenses in connection
with the transactions contemplated hereby, whether such transactions are
consummated, except as otherwise specifically provided herein.
K. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
L. The Company agrees to indemnify and hold harmless the Investor and its
respective officers, directors, employees and agents for loss, cost or damages
(including reasonable attorney's fees) arising as a result of or related to any
breach or alleged breach by the Company of its obligations under this Agreement
or in connection with the enforcement by the Investor of any of the Company's
obligations hereunder, including the enforcement of this indemnity.
M. No waiver by a party hereto shall be effective unless made in a written
instrument duly executed by the party against whom such waiver is sought to be
enforced, and only to the extent set forth
(Page 112 of 133)
in such instrument. Neither the waiver by any of the parties hereto of a breach
or a default under any of the provisions of this Agreement, nor the failure of
any of the parties, on one or more occasions, to enforce any of the provisions
of this Agreement or to exercise any right or privilege hereunder, shall
thereafter be construed as a waiver of any subsequent breach or default of a
similar nature, or as a waiver of any such provisions, rights or privileges
hereunder.
N. The parties hereto acknowledge that the obligations undertaken by them
hereunder are unique and that there would be no adequate remedy at law if any
party fails to perform any of its obligations hereunder, and accordingly agree
that each party, in addition to any other remedy to which it may be entitled at
law or in equity, shall be entitled to (i) compel specific performance of the
obligations, covenants and agreements of any other party under this Agreement in
accordance with the terms and conditions of this Agreement and (ii) obtain
preliminary injunctive relief to secure specific performance and to prevent a
breach or contemplated breach of this Agreement in any court of the United
States or any State thereof having jurisdiction.
O. If fulfillment of any provision of this Agreement, at the time such
fulfillment shall be due, shall transcend the limit of validity prescribed by
law, then the obligation to be fulfilled shall be reduced to the limit of such
validity; and if any clause or provision contained in this Agreement operates or
would operate to invalidate this Agreement, in whole or in part, then such
clause or provision only shall be held ineffective, as though not herein
contained, and the remainder of this Agreement shall remain operative and in
full force and effect.
(Page 113 of 133)
IN WITNESS WHEREOF, the Company and the Investor have caused this
Agreement to be duly executed as of the date first above written.
ANTHRACITE CAPITAL, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx
Chief Operating Officer and
Chief Financial Officer
RECP II ANTHRACITE, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
ADDRESS: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(Page 114 of 133)
