CONVERTIBLE NOTES
REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 28, 1993
BY AND AMONG
M.D.C. HOLDINGS, INC.
AND
THE PURCHASERS WHO ARE SIGNATORIES HERETO
CONVERTIBLE NOTES
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into as of December
28, 1993, by and among M.D.C. Holdings, Inc., a Delaware corporation (the
"Company"), and the purchasers of securities of the Company whose signatures
appear on the execution pages of this Agreement (the "Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated of
even date herewith, among the Company, the Guarantors and each of the Purchasers
(collectively, the "Purchase Agreement"). The execution of this Agreement is a
condition to the closing of the transactions contemplated by the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
Advice: As defined in the last paragraph of Section 5 hereof.
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Affiliate of any specified person shall mean any other person
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directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Registration Rights Agreement, as the same may be
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amended, supplemented or modified from time to time in accordance with the terms
hereof.
Business Day: Any day except Saturday, Sunday and any day which shall
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be a legal holiday or a day on which banking institutions in the state of New
York
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generally are authorized or required by law or other government actions to
close.
Company: M.D.C. Holdings, Inc., a Delaware corporation, and any
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successor corporation thereto.
Effectiveness Date: May 27, 1994.
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Effectiveness Period: As defined in Section 2 hereof.
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Event Date: As defined in Section 3(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the SEC promulgated pursuant thereto.
Filing Date: February 11, 1994.
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Indemnified Party: As defined in Section 7(c) hereof.
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Indemnifying Party: As defined in Section 7(c) hereof.
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Indenture: The Indenture, dated as of December 15, 1993 between the
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Company and the Trustee thereunder, pursuant to which the Notes were issued, as
amended or supplemented from time to time in accordance with the terms thereof.
Liquidated Damages: As defined in Section 3(a) hereof.
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Losses: As defined in Section 7(a) hereof.
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Notes: Up to $50,000,000 aggregate principal amount of 8-3/4%
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Convertible Subordinated Notes due 2005 of the Company being issued or issuable
pursuant to the Indenture and the Company's Common Stock issuable upon exercise
thereof.
Paying Agent: As defined in the Indenture.
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Placement Memorandum: The Private Placement Memorandum of the
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Company, dated December 6, 1993, relating to $28,000,000 principal amount of the
Notes (includ-
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ing, but not limited to, the Company's Form 10-K for the year ended
December 31, 1992, the Company's Proxy Statement, dated May 14, 1993, the
Company's Form 10-Q for the quarterly period ending September 30, 1993 and the
Company's Form 8K, dated December 6, 1993), as amended or supplemented by any
and all amendments and supplements thereto.
Proceeding: An action, claim, suit or proceeding (including, without
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limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Registrable Securities covered
by such Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Registrable Securities: The Notes, upon original issuance thereof,
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and at all times subsequent thereto, until, in the case of any such Note, (i) it
has been registered effectively pursuant to the Securities Act and disposed of
in accordance with the Registration Statement covering it, or (ii) it is sold by
the holder thereof pursuant to Rule 144 (or any similar provisions then in
effect).
Registration Statement: Any registration statement of the Company
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that covers any of the Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be
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amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC having substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
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Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC having substantially the same
effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations promulgated by the SEC thereunder.
Shelf Registration: As defined in Section 2 hereof.
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Special Counsel: Any special counsel to the holders of Registrable
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Securities, for which holders of Registrable Securities will be reimbursed
pursuant to Section 5.
TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: First Bank National Association, the trustee under the
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Indenture.
underwritten registration or underwritten offering: A registration in
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connection with which securities of the Company are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
2. Shelf Registration
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The Company shall prepare and file, as promptly as reasonably practicable,
with the SEC a Registration Statement for an offering to be made on a continuous
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basis pursuant to Rule 415 under the Securities Act covering all of the
Registrable Securities (the "Shelf Registration"). The Company shall (i) file a
Registration Statement relating to the Shelf Registration with the SEC on or
prior to the Filing Date, (ii) cause the Shelf Registration to become effective
under the Securities Act on or prior to the Effectiveness Date, and (iii) keep
the Shelf Registration continuously effective under the Securities Act until
(the "Effectiveness Period") (A) 24 months following the date on which the Shelf
Registration becomes effective (subject to extension pursuant to Section 4(a)
and the last paragraph of Section 5 hereof) or (B) if sooner, the date following
the date that all Registrable Securities covered by the Shelf Registration have
been sold pursuant thereto; provided that the Effectiveness Period shall be
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extended to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements under Rule 174 under the Securities Act.
3. Liquidated Damages
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(a) The parties hereto agree that the holders of Registrable
Securities will suffer damages if the Company fails to fulfill its obligations
under Section 2 and that it would not be feasible to ascertain the extent of
such damages. Accordingly, if, other than primarily as a result of any action
by the holders of Registrable Securities or any of their agents or
representatives, including, without limitation, their Special Counsel, or an
inability on the part of any holder or any of their representatives or agents to
obtain any necessary approval from the National Association of Securities
Dealers, Inc., (i) a Registration Statement relating to the Shelf Registration
is not filed with the SEC on or prior to the Filing Date, (ii) on or prior to
the Effectiveness Date, the Shelf Registration has not become effective under
the Securities Act, or (iii) at any time prior to the end of the Effectiveness
Period the Shelf Registration shall have ceased to be continuously effective
(the Filing Date, in the case of clause (i), the Effectiveness Date, in the case
of clause (ii), and the date on which the Registration Statement ceases to be
continuously effective, in the case of clause (iii), being referred to herein as
the "Event Date"), then the Company agrees to pay, as liquidated damages, and
not as a penalty, to each holder of a Registrable Security, an additional amount
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(the "Liquidated Damages") equal to (a) for each day beginning on, and
including, the Event Date and ending on but not including the date the act
required as of such Event Date actually takes place, $.20 per week per $1,000
principal amount of Registrable Securities held by such holder; provided that
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the Company shall not be required to pay in excess of $.20 per week per $1,000
principal amount of Registrable Securities held by any holder on account of
failures to act as of all such Event Dates.
(b) The Company shall notify the Trustee and Paying Agent under the
Indenture immediately upon the happening of each and every Event Date. The
Company shall pay the Liquidated Damages due on the Registrable Securities by
depositing with the Paying Agent (which may not be the Company for these
purposes), in trust, for the benefit of the holders thereof, at least one
business day prior to the next interest payment date specified by the Indenture,
sums sufficient to pay the Liquidated Damages then due. The Liquidated Damages
due shall be payable on each interest payment date specified by the Indenture to
the record holder entitled to receive the interest payment to be made on such
date. Each obligation to pay Liquidated Damages shall be deemed to accrue from
and including the applicable Event Date.
(c) The parties hereto agree that the liquidated damages provided for
in this Section 3 constitute a reasonable estimate of the damages that will be
suffered by holders of Registrable Securities by reason of the failure of the
Shelf Registration to be filed, to be declared effective or to remain effective,
as the case may be, in accordance with this Agreement.
4. Hold-Back Agreements
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(a) Restrictions on Sale by Holders of Registrable Securities. Each
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holder of Registrable Securities agrees, if requested (pursuant to a timely
written notice) by the managing underwriters in an underwritten offering or
placement agent in a private offering of the Company's debt securities, not to
effect any private sale or distribution (including a sale pursuant to Rule
144(k) and Rule 144A, but excluding non-public sales to any of its affiliates,
officers, directors, employees and controlling persons) of any of the Notes,
during the period beginning 10 days prior to, and ending 90 days after, the
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closing date of the underwritten offering. If a proper request is made pursuant
to this Section 4(a) at any time when a Shelf Registration is effective, then
the time period during which such a Shelf Registration is required to remain
continuously effective for such holders of Registrable Securities pursuant to
the terms of this Agreement shall be extended by 100 days.
The foregoing provisions shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute or regulation from
entering into any such agreement.
(b) Restrictions on Public Sale by the Company and Others. The
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Company agrees (i) without the written consent of the managing underwriters in
an underwritten offering of Registrable Securities covered by a Registration
Statement filed pursuant to Section 2 hereof, not to effect any public or
private sale or distribution of its debt securities, including a sale pursuant
to Regulation D or Rule 144A under the Securities Act, during the period
beginning 10 days prior to, and ending 90 days after, the closing date of each
underwritten offering made pursuant to such Registration Statement (provided,
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however, that such period shall be extended by the number of days from and
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including the date of the giving of any notice pursuant to Section 5(c) hereof
to and including the date when each seller of Registrable Securities covered by
such Registration Statement shall have received the copies of the supplemented
or amended Prospectus contemplated by Section 5(k) hereof).
5. Registration Procedures
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In connection with the Company's registration obligations hereunder, the
Company shall effect such registrations on the appropriate form available for
the sale of the Registrable Securities to permit the sale of Registrable
Securities in accordance with the method or methods of disposition thereof
specified by the holders of a majority in aggregate principal amount of
Registrable Securities, and pursuant thereto the Company shall as expeditiously
as possible:
(a) No fewer than 10 Business Days prior to the initial filing of a
Registration Statement or Prospectus and no fewer than two Business Days prior
to the
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filing of any amendment or supplement thereto (including any document that would
be incorporated or deemed to be incorporated therein by reference), furnish to
the Special Counsel and the managing underwriters, if any, copies of all such
documents proposed to be filed, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the review of such
Special Counsel and such underwriters, if any, and cause the officers and
directors of the Company, counsel to the Company and independent certified
public accountants to the Company to respond to such inquiries as shall be
necessary, in the opinion of such Special Counsel to such holders and such
underwriters, to conduct a reasonable investigation within the meaning of the
Securities Act; provided, further, that the Company shall not be deemed to have
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kept a Registration Statement effective during the applicable period if it
voluntarily takes any action that results in selling holders of the Registrable
Securities covered thereby not being able to sell such Registrable Securities
pursuant to Federal securities laws during that period unless such action is
required under applicable law (and the time period during which such
Registration Statement is required to remain effective hereunder shall be
extended by the number of days during which such selling holders of Registrable
Securities are not able to sell Registrable Securities). The Company shall not
file any such Registration Statement or Prospectus or any amendments or
supplements thereto to which the holders of a majority of the Registrable
Securities, their Special Counsel, or the managing underwriters, if any, shall
reasonably object on a timely basis; provided, that subject to the clause
preceding subsection (a) of this Section 5, the Company may reasonably and in
good faith file such document in a form required by law or upon advice of its
counsel and make such of the Company's representatives as shall reasonably be
requested by holders' Special Counsel or a managing underwriter, if any,
available for negotiation and discussion in good faith on such document;
provided, however, that in the event that the holders, their Special Counsel or
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the managing underwriter make such an objection, the Filing Date and the
Effectiveness Date shall be extended for a period of 60 days;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be necessary to
keep such
9
Registration Statement continuously effective for the applicable time period;
cause the related Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or in such
Prospectus as so supplemented;
(c) Notify the Special Counsel and the managing underwriters, if any,
promptly, (and in the case of (i) (A) in no event less than two Business Days
prior to such filing) and (if requested by any such Person), confirm such notice
in writing, (i) (A) when a Prospectus or any Prospectus supplement or
post-effective amendment is proposed to be filed, and, (B) with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other Federal or state
governmental authority for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, (iii) of the issuance by
the SEC, any state securities commission, any other governmental agency or any
court of any stop order, order or injunction suspending or enjoining the use or
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if at any time any of the representations and
warranties of the Company contained in any agreement (including any underwriting
agreement) contemplated hereby cease to be true and correct in all material
respects, (v) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, and (vi) of the happening of any
event that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus or documents so that, in the
case of the Registration Statement, it will not contain any untrue statement of
a
10
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, not misleading, and that in the
case of the Prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(d) Use its reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of any order enjoining or suspending the use or
effectiveness of a Registration Statement, or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment;
(e) If requested by the managing underwriters, if any, or the holders
of a majority in aggregate principal amount of the Registrable Securities being
sold in connection with such offering, make all required filings of such
Prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment; provided, however, that
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the Company shall not be required to take any action pursuant to this Section
5(e) that would, in the opinion of outside counsel for the Company, violate
applicable law;
(f) Furnish to each holder of Registrable Securities, their Special
Counsel and each managing underwriter, if any, without charge, at least one
conformed copy of each Registration Statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits to the extent
requested by each holder (including those previously furnished or incorporated
by reference) as soon as practicable after the filing of such documents with the
SEC;
(g) Deliver to each holder of Registrable Securities, their Special
Counsel, and the underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons
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reasonably request; and the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto unless an event occurs under
Paragraph 5(c)(vi) in which case such consent shall not be deemed to be given
until the Company has complied with Paragraph 5(k) or the holders of the
Registrable Securities have received an Advice.
(h) Prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify or cooperate with the holders of
Registrable Securities to be sold or tendered for, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any holder or underwriter reasonably
requests in writing; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, however,
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that the Company shall not be required to qualify generally to do business in
any jurisdiction where it is not then so qualified or to take any action that
would subject it to general service of process in any such jurisdiction where it
is not then so subject or subject the Company to any tax in any such
jurisdiction where it is not then so subject;
(i) Cooperate with the holders and the managing underwriters, if any,
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company and to enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters, if any,
or holders may request at least
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two Business Days prior to any sale of Registrable Securities;
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States, except as may be required solely as a consequence of the nature of such
selling holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals as may be necessary to enable the seller or sellers
thereof or the underwriters, if any, to consummate the disposition of such
Registrable Securities; provided, however, that the Company shall not be
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required to register the Registrable Securities in any jurisdiction that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or subject the Company to any tax in any such jurisdiction
where it is not then so subject or to require the Company to qualify to do
business in any jurisdiction where it is not then so qualified;
(k) Upon the occurrence of any event contemplated by Paragraph
5(c)(vi), as promptly as practicable, prepare a supplement or amendment,
including a post-effective amendment, to each Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(l) Use its reasonable best efforts to cause the Registrable
Securities covered by a Registration Statement to be rated with the appropriate
rating agencies, if so requested by the holders of a majority in aggregate
principal amount of Registrable Securities relating to such Registration
Statement or the managing underwriters, if any;
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Secu-
13
rities to provide a CUSIP number for the Registrable Securities;
(n) Use their reasonable best efforts to cause all Registrable
Securities relating to such Registration Statement to be listed on each
securities exchange, if any, on which substantially similar securities issued by
the Company are then listed;
(o) If a Shelf Registration is filed pursuant to Section 2, enter
into such agreements (including an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such other
reasonable actions in connection therewith (including those reasonably requested
by the managing underwriters, if any, or the holders of a majority in aggregate
principal amount of the Registrable Securities being sold) in order to expedite
or facilitate the disposition of such Registrable Securities, and in such
connection, whether or not an underwriting agreement is entered into, (i) make
such representations and warranties to the holders of such Registrable
Securities and the underwriters, if any, with respect to the business of the
Company and its subsidiaries, and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; provided, that any such representations and warranties with
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respect to such holders need include only customary representations as to
compliance with matters addressed by Rule 10b-5 under the Securities Act and
that the Registration Statement has been declared effective by the SEC pursuant
to the Securities Act; (ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters, if any, and Special
Counsel to the holders of the Registrable Securities being sold), addressed to
each selling holder of Registrable Securities and each of the underwriters, if
any, covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such Special Counsel and underwriters; provided that any such opinions addressed
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to holders may be limited to a customary opinion as to compliance with matters
addressed by Rule 10b-5
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under the Securities Act and that the Registration Statement has been declared
effective by the SEC pursuant to the Securities Act; (iii) use their best
efforts to obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Registration
Statement), addressed to each selling holder of Registrable Securities and each
of the underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings; (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures no less
favorable to the selling holders and the underwriters, if any, than those set
forth in Section 7 hereof (or such other provisions and procedures acceptable to
holders of a majority in aggregate principal amount of the holders of
Registrable Securities covered by such Registration Statement and the managing
underwriters); and (v) deliver such documents and certificates, other than those
specifically referenced in this clause (o), as may be reasonably requested by
the holders of a majority in aggregate principal amount of the Registrable
Securities being sold, their Special Counsel and the managing underwriters, if
any, to evidence the continued validity of the representations and warranties
made pursuant to clause 5(o)(i) above and to evidence compliance with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company;
(p) In the case of a Shelf Registration Statement, make available for
inspection by a representative of the holders of Registrable Securities being
sold, any underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, consultant or accountant retained by such
selling holders or underwriter, at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and cause the
officers, directors, agents and employees of the Company and its subsidiaries to
supply all information in each case reasonably requested by any such
representative, under-
15
writer, attorney, consultant or accountant in connection with such Registration
Statement;
(q) Provide an indenture trustee for the Registrable Securities and
cause the Indenture to be qualified under the TIA not later than the effective
date of the first Registration Statement relating to the Registrable Securities;
and in connection therewith, cooperate with the trustee under the Indenture and
the holders of the Registrable Securities, to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use its reasonable efforts to cause
such trustee to execute, all customary documents as may be required to effect
such changes, and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner; and
(r) Comply with all applicable rules and regulations of the SEC and
make generally available to their securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act), no later than 45
days after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to underwriters in a
firm commitment or reasonable efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the first
fiscal quarter of each of the Company after the effective date of a Registration
Statement, which statement shall cover said 12-month periods, or end shorter
periods as is consistent with the requirements of Rule 158.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities as is
required by law to be disclosed in the applicable Registration Statement and the
Company may exclude from such registration the Registrable Securities of any
seller who unreasonably fails to furnish such information within a reasonable
time after receiving such request.
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If any such Registration Statement refers to any holder by name or
otherwise as the holder of any securities of the Company, then such holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such holder, to the effect that the holding
by such holder of such securities is not to be construed as a recommendation by
such holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such holder will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such holder by name or otherwise is not required by the
Securities Act or any similar Federal statute then in force, the deletion of the
reference to such holder in any amendment or supplement to the Registration
Statement filed or prepared subsequent to the time that such reference ceases to
be required.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii),
5(c)(v) or 5(c)(vi) hereof, such holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. If the Company shall give any
such notice, the time periods mentioned in Section 2 hereof shall be extended by
the number of days during such periods from and including the date of the giving
of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
17
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not any Registration Statement is filed or becomes effective and
whether or not any securities are issued or sold pursuant to any Registration
Statement (unless such Registration Statement is not filed or does not become
effective or securities are not issued or sold pursuant to such Registration
Statement as a result of any action by the holders of Registrable Securities
requesting such registration). The fees and expenses referred to in the
foregoing sentence shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (A) with respect
to filings required to be made with the National Association of Securities
Dealers, Inc. and (B) in compliance with securities or Blue Sky laws (including,
without limitation and in addition to that provided for in (b) below, reasonable
fees and disbursements of counsel for the underwriters or holders in connection
with Blue Sky qualifications of the Registrable Securities and determination of
the eligibility of the Registrable Securities for investment under the laws of
such jurisdictions as the managing underwriters, if any, or holders of a
majority in aggregate principal amount of Registrable Securities may designate),
(ii) printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriters, if any, or by the
holders of a majority in principal amount of the Registrable Securities included
in or tendered for in connection with any Registration Statement), (iii)
messenger, telephone and delivery expenses, (iv) reasonable fees and
disbursements of counsel for the Company and Special Counsel for the holders (in
accordance with the provisions of Section 6(b) hereof), (v) fees and
disbursements of the independent certified public accountants of the Company
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi)
underwriters' fees and expenses (excluding discounts, commissions or fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals relating to the distri-
18
bution of the Registrable Securities), (vii) rating agency fees, (viii)
Securities Act liability insurance, if the Company so desires such insurance,
and (ix) fees and expenses of all other persons retained by the Company. In
addition, the Company shall pay their internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange on which similar securities issued by the
Company are then listed, if it chooses, or is required, so to list and rating
agency fees (plus any local counsel, deemed appropriate by the holders of a
majority in aggregate principal amount of the Registrable Securities).
(b) In connection with any Registration hereunder, the Company shall
reimburse the holders of the Registrable Securities being registered in such
registration for the reasonable fees and disbursements of not more than one firm
of attorneys ("Special Counsel") chosen by the holders of a majority in
aggregate principal amount of the Registrable Securities.
7. Indemnification
---------------
(a) Indemnification by the Company. The Company shall,
------------------------------
notwithstanding termination of this Agreement and without limitation as to time,
indemnify and hold harmless each holder of Registrable Securities, the officers,
directors, agents, investment advisors and employees of each of them, each
person who controls any such holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling person, to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, costs of preparation and reasonable attorneys'
fees) and expenses (collectively, "Losses"), as incurred, arising out of or
based upon any untrue or alleged untrue statement of a material fact contained
in any Registration Statement, Prospectus or form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or based upon any omission or alleged omission of a material fact required to
be stated therein
19
or necessary to make the statements therein (in the case of any Prospectus or
form of prospectus or supplement thereto, in light of the circumstances under
which they were made) not misleading, except to the extent, that such are
finally determined to have been based upon information regarding such Holder
furnished in writing to the Company by or on behalf of such holder expressly for
use therein, and that information was reasonably relied on by the Company in the
preparation thereof; provided, however, that the Company shall not be liable to
-------- -------
the extent that (A) any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if (i) having previously been furnished by or on
behalf of the Company with copies of the Prospectus on a timely basis, such
holder failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale by such holder of a Registrable
Security to the person asserting such Losses who purchased such Registrable
Security that is the subject thereof and (ii) the Prospectus would have
adequately corrected such untrue statement or alleged untrue statement or such
omission or alleged omission or (B) any such Losses arise primarily out of or
are based primarily upon an untrue statement or alleged untrue statement or
omission or alleged omission in the Prospectus, if such untrue statement or
alleged untrue statement, omission or alleged omission is adequately corrected
in an amendment or supplement to the Prospectus (such that there is no longer
any untrue statement of a material fact in the Prospectus or omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading) and if, having previously been furnished by or on behalf
of the Company with copies of the Prospectus as so amended or supplemented, the
holder of Registrable Securities thereafter failed to deliver such Prospectus as
so amended or supplemented on a timely basis, prior to or concurrently with the
sale of a Registrable Security to the person asserting such Losses who purchased
such Registrable Security that is the subject thereof from such holder.
(b) Indemnification by Holder of Registrable Securities. In
---------------------------------------------------
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities
20
shall furnish to the Company in writing such information as the Company
reasonably requests for use in connection with any Registration Statement or
Prospectus and agrees to indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling persons, to
the fullest extent lawful, from and against all Losses (as determined by a court
of competent jurisdiction in a final judgment not subject to appeal or review)
arising out of or based upon any untrue statement of a material fact contained
in any Registration Statement, Prospectus, or form of prospectus, or arising out
of or based upon any omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading to the extent, but
only to the extent, that such untrue statement or omission is contained in any
information so furnished in writing by such holder to the Company expressly for
use in such Registration Statement or Prospectus and that such information was
reasonably relied upon by the Company in preparation of such Registration
Statement, Prospectus or form of prospectus. In no event shall the liability of
any selling holder of Registrable Securities hereunder be greater in amount than
the dollar amount of the proceeds received by such holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall
--------------------------------------
be brought or asserted against any person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party promptly shall so notify the person
from whom indemnity is sought (the "Indemnifying Party") in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof; provided,
--------
that the failure of any Indemnified Party to give such notice shall not relieve
the Indemnifying Party of its obligations pursuant to this Agreement, except to
the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have materially prejudiced the Indemnifying Party.
21
Any such Indemnified Party shall have the right to employ separate
counsel in any such action, claim or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party or Parties, unless: (1) the Indemnifying Party
has agreed to pay such fees and expenses; or (2) the Indemnifying Party shall
have failed promptly to assume the defense of such action, claim or proceeding
and to employ counsel reasonably satisfactory to such Indemnified Party in any
such action, claim or proceeding; or (3) the named parties to any such action,
claim or proceeding (including any impleaded parties) include both such
Indemnified Party and the Indemnifying Party, and such Indemnified Party shall
have been advised in writing by counsel that an actual conflict of interest may
exist if such counsel represents such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying
Parties in writing that it elects to employ separate counsel at the expense of
the Indemnifying Parties, the Indemnifying Parties shall not have the right to
assume the defense thereof and such counsel shall be at the expense of the
Indemnifying Party), it being understood, however, that, the Indemnifying Party
shall not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for all such Indemnified Parties, which firm
shall be designated in writing by the Indemnified Parties. The Indemnifying
Party shall not be liable for any settlement of any such Proceeding effected
without its written consent, which consent shall not be unreasonably withheld.
No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any proceeding, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are or may be the subject matter of such proceeding.
All fees and expenses of the Indemnified Party (including reasonable
fees and expenses to the extent incurred in connection with investigating or
preparing to defend such action or proceeding in a manner not inconsistent with
this Section 7) shall be paid to the Indem-
22
nified Party, as incurred, within 20 business days of written notice thereof to
the Indemnifying Party (regardless of whether it is ultimately determined that
an Indemnified Party is not entitled to indemnification hereunder; provided that
--------
the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).
(d) Contribution. If a claim by an Indemnified Party for
------------
indemnification under Section 7(a) or 7(b) hereof is found unenforceable in a
final judgment by a court of competent jurisdiction (not subject to further
appeal) (even though the express provisions hereof provide for indemnification
in such case), then each applicable Indemnifying Party, in lieu of indemnifying
such Indemnified Party, 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 and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 7(c), any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or Proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
--- ----
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), an Indemnifying Party that
is a holder of Registrable Securities shall not be
23
required to contribute any amount in excess of the amount by which the total
price at which the securities sold by such Indemnifying Party and distributed to
the public were offered to the public exceeds the amount of any damages that
such Indemnifying Party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
8. Rules 144 and 144A
------------------
The Company shall use its best efforts to file the reports required to
be filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at any time the Company is not required to file such reports, it will,
upon the reasonable request of any holder of Registrable Securities, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company further covenants
that it will take such further action as any holder of Registrable Securities
may reasonably request, all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A. Upon the request of any holder of Registrable Securities, the Company
shall deliver to such holder a written statement as to whether it has complied
with such requirements.
9. Underwritten Registrations
--------------------------
If any of the Registrable Securities covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering.
No person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's Registrable Securities on
the basis reasonably provided in any underwriting arrangements ap-
24
proved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Company or by a holder
--------
of Registrable Securities of any of their obligations under this Agreement, each
holder of Registrable Securities or the Company, in addition to being entitled
to exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
and each holder of Registrable Securities agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not, as of the date
--------------------------
hereof, nor shall the Company, without the written consent of the holders of a
majority in aggregate principal amount of the then outstanding Registrable
Securities, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the holders of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof. Except for the Senior Notes Registration Rights
Agreement (as defined in the Purchase Agreement) and registration rights granted
to Messrs. Mizel and Mandarich pursuant to the Option Agreement (as defined in
the Placement Memorandum), the Company has not previously entered into any
agreement granting any registration rights with respect to any of its securities
to any person.
(c) No Piggyback on Registrations. Neither the Company, nor any of
-----------------------------
its securityholders (other than the holders of Registrable Securities in such
capacity pursuant to the applicable Section hereof) may include securities of
the Company or the Guarantors in any Shelf Registration (except to the extent
that the inclusion of such securities by the Company or such securityholder
25
would not, in the good faith opinion of the managing underwriter selected by the
holders of Registrable Securities, materially and adversely affect the success
of the offering proposed to be made by holders of Registrable Securities).
(d) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
holders of a majority of the then outstanding aggregate principal amount of
Registrable Securities; provided, however, that, for the purposes of this
-------- -------
Agreement, Registrable Securities that are owned, directly or indirectly, by the
Company or an Affiliate of the Company are not deemed outstanding.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Registrable Securities may be given by holders of a
majority in aggregate principal amount of the Registrable Securities being sold
by such holders pursuant to such Registration Statement; provided, however, that
-------- -------
the provisions of this sentence may not be amended, modified, or supplemented,
except in accordance with the provisions of the immediately preceding sentence.
(e) Notices. All notices and other communications provided for
-------
herein shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or facsimile to:
(i) the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof, or
(ii) if to any other person who is then the registered holder of
any Registrable Securities, to the address of such holder as it appears in the
Note register of the Company.
26
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given: when delivered by hand, if personally
delivered; one business day after being timely delivered to a next-day air
courier; five business days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; and when receipt is acknowledged by
the recipient's telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each holder of at least $ 100,000
principal amount of Registrable Securities. The Company may not assign (except
to a successor entity as a result of merger, consolidation or transfer of all or
substantially all assets) its rights or obligations hereunder without the prior
written consent of each holder of any Registrable Securities. Notwithstanding
the foregoing, no transferee shall have any of the rights granted under this
Agreement until such transferee shall acknowledge its rights and obligations
hereunder by a signed written statement of such transferee's acceptance of such
rights and obligations.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
(h) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
---------------------------------------------------------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN OR ANY FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRRE-
27
VOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ANY HOLDER OF A REGISTRABLE SECURITY TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
(i) Severability. The remedies provided herein are cumulative and
------------
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement unless expressly stated otherwise.
(k) Attorneys' Fees. In any action or proceeding brought to enforce
---------------
any provision of this Agreement, or where any provision hereof or thereof is
validly asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
28
(l) Termination. This Agreement shall terminate and be of no further
-----------
force and effect from and after the earliest of (w) the date on which 10% or
less of the Registrable Securities remain outstanding, (x) with respect to any
holder of Registrable Securities, the date on which all of the Notes held by
such holder may be sold pursuant to Rule 144(k), (y) with respect to any holder
of Registrable Securities, the date on which all of the Notes held by such
holder may be sold in a three-month period pursuant to Rule 144 and (z) 7 years
from the date hereof.
29
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By: /s/ SPENCER I. BROWNE
-------------------------
Name: Spencer I. Browne
Title: President
Attest: /s/ PARIS G. REECE
--------------------
PURCHASER:
By:
-----------------------
Name:
Title:
30
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Brookside Corporation
By: /s/ Leslie L. Alexander
--------------------------------------
Name: Leslie L. Alexander
Title: President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Alliance Managed Income
By: /s/ Wayne D. Lyski
--------------------------------------
Name: Wayne D. Lyski
Title: Executive Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Delaware Dividend and Income Fund
By: /s/ Babak Zenova
--------------------------------------
Name: Babak Zenova
Title: Quantitative Analyst
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: SUBSE & CO:
F/B/O Die Erste Osterreichische Spar
Casse Bank AG
By: /s/ Michael Keplinger
--------------------------------------
Name: Michael Keplinger
Title: Funds Manager
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Farallon Capital Partners, L.P.
By: /s/ Jason M. Fish
--------------------------------------
Name: Jason M. Fish
Title: General Partner
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Farallon Capital Institutional
Partners I
By: /s/ Jason M. Fish
--------------------------------------
Name: Jason M. Fish
Title: General Partner
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Farallon Capital Institutional
Partners II
By: /s/ Jason M. Fish
--------------------------------------
Name: Jason M. Fish
Title: General Partner
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Tinicum Partners, L.P.
By: /s/ Jason M. Fish
--------------------------------------
Name: Jason M. Fish
Title: General Partner
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Farallon Capital Management, Inc.
F/A/O Farallon Capital Offshore
Investors, Inc.
By: /s/ Jason M. Fish
--------------------------------------
Name: Jason M. Fish
Title: Managing Director
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Farallon Capital Management, Inc.
F/A/O The Common Fund
By: /s/ Jason M. Fish
--------------------------------------
Name: Jason M. Fish
Title: Managing Director
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Farallon Capital Management, Inc.
F/A/O Donald Fisher Trust #2
By: /s/ Jason M. Fish
--------------------------------------
Name: Jason M. Fish
Title: Managing Director
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Farallon Capital Management, Inc.
F/A/O C.P.I., Ltd.
By: /s/ Jason M. Fish
--------------------------------------
Name: Jason M. Fish
Title: Managing Director
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Variable Insurance Products Fund:
High Income Portfolio
By: /s/ John Costello
--------------------------------------
Name: John Costello
Title: Assistant Treasurer
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Spartan High Income Fund
By: /s/ John Costello
--------------------------------------
Name: John Costello
Title: Assistant Treasurer
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Fidelity ARG
F/A/O John C. Wasmer, Jr., IRA
By: /s/ Martin M. Wasmer
--------------------------------------
Name: Martin M. Wasmer
Title: Managing Director
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: VALUE PARTNERS, LTD.
By: /s/ Timothy G. Ewing
--------------------------------------
Name: Timothy G. Ewing
Title: Partner of Fisher Ewing Partners,
General Partner of Value Partners, Ltd.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
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PURCHASER:
By: /s/ Richard A. Horstmann
--------------------------------------
Name: Richard A. Horstmann
Title:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Boulderwood Company, L.P.
By: /s/ Richard A. Horstmann
--------------------------------------
Name: Richard A. Horstmann
Title: General Partner
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: J.M. Hull Associates, L.P.
By: /s/ J. Mitchell Hull
--------------------------------------
Name: J. Mitchell Hull
Title: General Partner
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: IDS Diversified Equity Income Fund
By: /s/ Leslie L. Ogg
--------------------------------------
Name: Leslie L. Ogg
Title: Vice President, General Counsel
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Janus Growth & Income Fund
By: /s/ Ronald V. Speaker
--------------------------------------
Name: Ronald V. Speaker
Title: Portfolio Manager
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: George C. Hillenbrand 1974 Trust
F/B/O Elisabeth H. Burtschy
By: /s/ Lawrence R. Burtschy
--------------------------------------
Name: Lawrence R. Burtschy
Title: Trustee
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER:
By: /s/ George M. Hillenbrand II
--------------------------------------
Name: George M. Hillenbrand II
Title:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Paces Partners, L.P.
By: /s/ William C. Brookshire Jr.
--------------------------------------
Name: William C. Brookshire Jr.
Title: General Partner
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: S.A.C. Capital Management, L.P.
By: /s/ Steven A. Cohen
--------------------------------------
Name: Steven A. Cohen
Title: General Partner
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Woodstead Associates, L.P.
By: /s/ Jeffrey A. Smith
--------------------------------------
Name: Jeffrey A. Smith
Title: Assistant Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Smith New Court, Carl Marks Inc.
By: /s/ Kevah Konner
--------------------------------------
Name: Kevah Konner
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Steven Mizel IRA
By: /s/ Steven M. Mizel
--------------------------------------
Name: Steven M. Mizel
Title:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: SONEM Partners, Ltd.
By: 7547 Corp., General Partner
By: /s/ Steven M. Mizel
--------------------------------------
Name: Steven M. Mizel
Title: President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: SPHERE INVESTMENT TRUST PLO
By: /s/ David Horne
--------------------------------------
Name: David Horne
Title: Company Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Strome Offshore, Ltd.
By: /s/ Jeffrey Lambert
--------------------------------------
Name: Jeffrey Lambert
Title: CFO of Strome Susskind,
Investment Advisor
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
------------------
PURCHASER: Strome Partners, L.P.
By: /s/ Jeffrey Lambert
--------------------------------------
Name: Jeffrey Lambert
Title: CFO of Strome Susskind,
General Partner