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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
April 9, 1997 between Cityscape Financial Corp., a Delaware corporation
("Cityscape") and each person executing a counterpart of the signature page of
this Agreement (each individually an "Investor" and collectively the
"Investors").
W I T N E S S E T H:
WHEREAS, pursuant to the Securities Purchase Agreement by and between
Cityscape and the Investors (the "Securities Purchase Agreement"), Cityscape has
agreed to sell and issue to the Investors, and the Investors have agreed to
purchase from Cityscape, up to an aggregate of 5,000 shares, par value $0.01 per
share of Cityscape's 6% Convertible Preferred Stock, Series A (the "Series A
Preferred Stock") on the terms and conditions set forth therein and five-year
warrants issued as of the date hereof exercisable from time to time from the
date of issuance (the "Warrants"), for the purchase of up to 500,000 shares of
Common Stock, par value $0.01 per share of Cityscape (the "Common Stock"), at a
price specified in such Warrants (the shares of Common Stock issuable upon the
exercise of Warrants are hereinafter called the "Warrant Shares");
WHEREAS, the Investors may convert their Series A Preferred Stock into
shares of Common Stock at a conversion price to be calculated pursuant to and
upon such terms as are provided in the Certificate of Designations (the
"Certificate of Designations") of the Series A Preferred Stock; and
WHEREAS, pursuant to the terms of, and in partial consideration for, the
Investors' agreement to enter into the Securities Purchase Agreement, Cityscape
has agreed to provide the holders of Series A Preferred Stock with certain
registration rights with respect to the shares of Common Stock to be issued upon
conversion of the Series A Preferred Stock (such shares of Common Stock together
with the Warrant Shares are hereinafter referred to as the "Common Shares") and
certain other rights and remedies with respect to the Series A Preferred Stock
as set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in the Securities Purchase
Agreement and this Agreement, Cityscape and the Investors agree as follows:
1. Certain Definitions. Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed thereto in the Securities Purchase
Agreement or the Certificate of Designations. As used in this Agreement, the
following terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Holder" and "Holders" shall include an Investor or the Investors for
so long as they own any Registrable Securities, respectively, and any
assignee or transferee of Registrable Securities to whom the registration
rights conferred by this Agreement have been transferred in compliance with
this Agreement.
"Closing" and "Closing Date" shall have the meanings ascribed to such
terms in the Securities Purchase Agreement.
"Liquidation Preference" shall have the meaning ascribed to such term
in the Certificate of Designations. For clarification purposes,
"Liquidation Preference" hereunder shall include any accrued and unpaid
dividends on the Series A Preferred Stock on a per diem basis through the
date of any event for which default payments are payable pursuant to
Section 2(b) below and thereafter.
"Registrable Securities" shall mean: (i) the Common Shares issued to
each Holder or its permitted transferee or designee upon conversion of the
Series A Preferred Stock or exercise of the Warrants or upon any stock
split, stock dividend, recapitalization or similar event with respect to
such Common
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Shares; (ii) any securities issued or issuable to each Holder upon the
exchange or conversion of any Series A Preferred Stock, Warrants or Common
Shares; and (iii) any other security of Cityscape issued as a dividend or
other distribution with respect to, in exchange of or in replacement of the
securities listed in (i) and (ii) above, until in the case of any such
securities (a) a registration statement under the Securities Act covering
the offering of such Registrable Securities has been declared effective by
the Commission and such Registrable Securities have been disposed of
pursuant to such effective registration statement, (b) such Registrable
Securities are sold under circumstances in which all of the applicable
conditions of Rule 144 (or any similar provision then in force) under the
Securities Act ("Rule 144") are met, (c) such Registrable Securities have
been otherwise transferred and Cityscape has delivered a new certificate or
other evidence of ownership for such securities not bearing a restrictive
legend, or (d) such time as, such Registrable Securities may be sold
without any time, volume or manner limitation pursuant to Rule 144(k) (or
any similar provision then in effect) under the Securities Act.
The terms "register," registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses to be incurred by
Cityscape in connection with each Holder's registration rights under this
Agreement, including without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for Cityscape, blue
sky fees and expenses, reasonable fees and disbursements of counsel to
Holders (using a single counsel selected by a majority in interest of the
Holders) for a "due diligence" examination of Cityscape and review of the
Registration Statement and related documents, and the expense of any
special audits incident to or required by any such registration (but
excluding the compensation of regular employees of Cityscape, which shall
be paid in any event by Cityscape).
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees
and disbursements of counsel for Holders not included with "Registration
Expenses."
"Registration Statement" shall have the meaning set forth in Section
2(a) herein.
"Regulation D" shall mean regulation D as promulgated pursuant to the
Securities Act, and as subsequently amended.
"Securities Act" or "Act" shall mean the Securities Act of 1933, as
amended.
2. Registration Requirements. Cityscape shall use its diligent best
efforts to effect the registration of the Registrable Securities (including
without limitation the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act) as would permit or facilitate the sale or distribution
of all the Registrable Securities in the manner (including manner of sale) and
in all states reasonably requested by the Holder. Such best efforts by Cityscape
shall include the following:
(a) Cityscape shall, as expeditiously as reasonably practicable after
the Closing Date:
(i) Prepare and file with the Commission pursuant to Rule 415 under
the Securities Act a registration statement on Form S-3 under the
Securities Act (or in the event that Cityscape is ineligible to use such
form, such other form as Cityscape is eligible to use under the
Securities Act) covering the Registrable Securities ("Registration
Statement"). Thereafter, Cityscape shall use its best efforts to cause
such Registration Statement and other filings to be declared effective
prior to 120 days following the Closing Date. Cityscape shall provide
Holders reasonable opportunity to review any such Registration Statement
or amendment or supplement thereto prior to filing.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to a Registration Statement as may be
necessary to keep such Registration Statement effective for so long as
there are any Registrable Securities outstanding; cause the related
prospectus to be supplemented by any required prospectus supplement, and
as so supplemented to be filed pursuant to
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Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act applicable to it with respect to the disposition of all
Registrable Securities covered by such Registration Statement for so
long as there are any Registrable Securities outstanding in accordance
with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement or supplement to such prospectus;
(iii) Furnish to each Holder such numbers of copies of a current
prospectus conforming with the requirements of the Act, copies of the
Registration Statement, any amendment or supplement thereto and any
documents incorporated by reference therein and such other documents as
such Holder may reasonably require in order to facilitate the
disposition of Registrable Securities owned by such Holder.
(iv) Use its best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or
"Blue sky" laws of such jurisdictions as shall be reasonably requested
by each Holder and keep each such registration or qualification
effective, including through new filings or amendments or renewals, for
so long as there are any Registrable Securities outstanding 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 that Cityscape shall
not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(v) For so long as there are any Registrable Securities outstanding
notify each Holder immediately, and confirm such notice in writing, (A)
when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement
or any post-effective amendment, when the same has become effective, (B)
of any request by the Commission for amendments or supplements to a
Registration Statement or related prospectus or for additional
information, (C) of the receipt by Cityscape of any notification with
respect to the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, and (D) of Cityscape's reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate or that there exist circumstances not yet
disclosed to the public which make further sales under such Registration
Statement inadvisable pending such disclosure and post-effective
amendment.
(vi) Notify each Holder immediately, and confirm such notice in
writing of the happening of any event as a result of which the
prospectus (including any supplements thereto or thereof) included in
such Registration Statement, as then in effect, contains any untrue
statement of material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein (in the
case of the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading, and use its
best efforts to promptly update and/or correct such prospectus.
(vii) Notify each Holder immediately, and confirm such notice in
writing of the issuance by the Commission or any state securities
commission or agency of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose. Cityscape shall use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement,
or the lifting of any suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction, at the earliest
possible moment.
(viii) Permit Dorsey & Whitney LLP (or such other counsel,
designated as Holders' counsel by a majority of the Registrable
Securities included in the Registration Statement and which is
reasonably acceptable to Cityscape), to review the Registration
Statement and all amendments and supplements thereto within a reasonable
period of time prior to each filing, and shall not file any document in
a form to which such counsel reasonably objects.
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(ix) Cause all Registrable Securities that are shares of Common
Stock covered by such Registration Statement to be listed, by the date
of the first sale of Registrable Securities pursuant to such
Registration Statement, with the principal securities exchange(s) and/or
markets on which the Common Stock is then listed and prepare and file
any required filings with the National Association of Securities
Dealers, Inc. or any exchange or market where the Common Shares are
traded.
(x) Take all steps necessary to enable Holders to avail themselves
of the prospectus delivery mechanism set forth in Rule 153 (or successor
thereto) under the Act, if available.
(b) If the Holder(s) intend to distribute the Registrable Securities
by means of an underwriting, the Holder(s) shall so advise Cityscape. Any
such underwriting may only be administered by investment bankers reasonably
satisfactory to Cityscape. Cityscape shall only be obligated to permit one
underwritten offering, which offering shall be determined by a 66 2/3%
majority-in-interest of the Holders.
(c) Cityscape shall enter into such customary agreements for an
underwritten secondary offering (including a customary underwriting
agreement with the underwriter or underwriters), and take all such other
actions reasonably requested by the Holders in connection therewith in
order to expedite or facilitate the disposition of such Registrable
Securities and in such connection:
(i) make such representations and warranties to the Holders and the
underwriter or underwriters in form, substance and scope as are
customarily made by issuers to underwriters in secondary offerings;
(ii) cause to be delivered to the sellers of Registrable Securities
and the underwriter or underwriters opinions of independent counsel to
Cityscape, on and dated the date of delivery of any Registrable
Securities sold pursuant to the Registration Statement, which counsel
and opinion (in form, scope and substance) shall be reasonably
satisfactory to the Holders and the underwriter(s) and their counsel and
covering, without limitation, such matters as the due authorization and
issuance of the securities being registered and compliance with
securities laws by Cityscape in connection with the authorization,
issuance and registration thereof and other matters that are customarily
given to underwriters in underwritten offerings, addressed to the
Holders and each underwriter;
(iii) cause to be delivered, immediately prior to the time of
delivery of any Registrable Securities sold pursuant to the Registration
Statement, a "comfort" letter from Cityscape's independent certified
public accountants addressed to the Holders and each underwriter,
stating that such accountants are independent public accountants within
the meaning of the Securities Act and the applicable published rules and
regulations thereunder, and otherwise in customary form and covering
such financial and accounting matters as are customarily covered by
letters of the independent certified public accountants delivered in
connection with secondary offerings;
(iv) any underwriting agreement is entered into shall include
customary indemnification and contribution provisions to and from the
Company and the underwriters;
(v) deliver such documents and certificates as may be reasonably
requested by the Holders of the Registrable Securities being sold or the
managing underwriter or underwriters, if any, to evidence compliance
with clause (i) above and with any customary conditions contained in the
underwriting agreement, if any.
(e) Cityscape shall make available for inspection by the Holders,
representative(s) of all the Holders together, any underwriter
participating in any disposition pursuant to a Registration Statement, and
any attorney or accountant retained by any Holder or underwriter, all
financial and other records customary for purposes of the Holders' due
diligence examination of Cityscape and review of any Registration
Statement, all SEC Documents (as defined in the Securities Purchase
Agreement) filed subsequent to the Closing, pertinent corporate documents
and properties of Cityscape, and cause Cityscape's officers, directors and
employees to supply all information reasonably requested by any such
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representatives, underwriter, attorney or accountant in connection with
such Registration Statement, provided that such parties agree to keep such
information confidential.
(f) Subject to Section 2(b) above, Cityscape may suspend the use of
any prospectus used in connection with the Registration Statement only (i)
in the event, and for such period of time as, such a suspension is required
by the rules and regulations of the Commission, or (ii) as otherwise
provided in the Certificate of Designations. Cityscape will use its best
efforts to cause such suspension to terminate at the earliest possible
date.
(g) In the event Cityscape is required to file an additional
registration statement with respect to newly authorized and/or reserved
shares of Common Stock (the "New Shares") in order to comply with its
obligations under the Series A Preferred Stock or the Warrant, Cityscape
shall file an additional registration statement within five (5) business
days of any shareholders meeting authorizing the New Shares and shall use
its best efforts to cause such registration statement to become effective
within sixty (60) days of such shareholders meeting. If the Holders become
entitled, pursuant to an event described in clause (iii) of the definition
of Registrable Securities, to receive any securities in respect of
Registerable Securities that were already included in a registration
statement, subsequent to the date such registration statement is declared
effective, and Cityscape is unable under the securities laws to add such
securities to the then effective registration statement, Cityscape shall
promptly file, in accordance with the procedures set forth herein, an
additional registration statement with respect to such newly Registrable
Securities. Cityscape shall use its best efforts to (i) cause any such
additional registration statement, when filed, to become effective under
the Securities Act, and (ii) keep such additional registration statement
effective during the period described in Section 5 below.
3. Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance with registration
pursuant to this Agreement shall be borne by Cityscape, and all Selling Expenses
of a Holder shall be borne by such Holder.
4. Registration on Form S-3. Cityscape shall use its best efforts to
remain eligible for registration on Form S-3 or any comparable or successor form
or forms, or in the event that Cityscape is ineligible to use such form, such
form as Cityscape is eligible to use under the Securities Act.
5. Registration Period. In the case of the registration effected by
Cityscape pursuant to this Agreement, Cityscape will use its best efforts to
keep such registration effective until the Holders have completed the sales or
distribution described in the Registration Statement (or additional registration
statement filed pursuant to Section 2(g) above) relating thereto or, if earlier,
until such time as, such Registrable Securities may be sold without any time,
volume or manner limitation pursuant to Rule 144(k) (or any similar provision
then in effect) under the Securities Act (provided that Cityscape's transfer
agent has accepted an instruction from Cityscape to such effect).
6. Indemnification.
(a) Cityscape Indemnity. Cityscape will indemnify each Holder, each of its
officers, directors and partners, and each person controlling each Holder,
within the meaning of Section 15 of the Securities Act and the rules and
regulations thereunder with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls, within the meaning of Section 15 of the
Securities Act and the rules and regulations thereunder, any underwriter,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular or
other document (including any related registration statement, notification or
the like) incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by Cityscape of the Securities Act or any state
securities law or in either case, any rule or regulation thereunder applicable
to Cityscape and relating to action or inaction required of Cityscape in
connection with any such registration, qualification or compliance, and will
reimburse each Holder, each of its officers, directors and partners, and each
person controlling such Holder, each such underwriter and each person who
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controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, provided that Cityscape will not be liable in any
such case to a Holder to the extent that any such claim, loss, damage, liability
or expense arises out of or is based on any untrue statement or omission based
upon and in conformity with written information furnished to Cityscape by such
Holder or the underwriter (if any) therefor and stated to be specifically for
use therein. The indemnity agreement contained in this Section 6(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of Cityscape (which
consent will not be unreasonably withheld).
(b) Holder Indemnity. Each Holder will, severally and not jointly, if
Registrable Securities held by it are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify
Cityscape, each of its directors, officers, partners, and each underwriter, if
any, of Cityscape's securities covered by such a registration statement, each
person who controls Cityscape or such underwriter within the meaning of Section
15 of the Securities Act and the rules and regulations thereunder, each other
Holder (if any), and each of their officers, directors and partners, and each
person controlling such other Holder(s) against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statement therein not
misleading, and will reimburse Cityscape and such other Holder(s) and their
directors, officers and partners, underwriters or control persons for any legal
or any other expenses reasonably incurred in connection with investigating and
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to Cityscape by such Holder and
stated to be specifically for use therein, and provided that the maximum amount
for which such Holder shall be liable under this indemnity shall not exceed the
net proceeds received by such Holder from the sale of the Registrable Securities
pursuant to such registration statement. The indemnity agreement contained in
this Section 6(b) shall not apply to amounts paid in settlement of any such
claims, losses, damages or liabilities if such settlement is effected without
the consent of such Holder (which consent shall not be unreasonably withheld).
(c) Procedure. Each party entitled to indemnification under this Article
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim in any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article except to the extent
that the Indemnifying Party is materially and adversely affected by such failure
to provide notice. 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 reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for such Indemnified Party, provided, however, that if separate firm(s)
of attorneys are required due to a conflict of interest, then the Indemnifying
Party shall be liable for the reasonable fees and expenses of each such separate
firm. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the defense of
such claim and litigation resulting therefrom.
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7. Contribution. If the indemnification provided for in Section 6 herein
is unavailable to the Indemnified Parties in respect of any losses, claims,
damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such 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, claims, damages or
liabilities as between Cityscape on the one hand and any Holder on the other, in
such proportion as is appropriate to reflect the relative fault of Cityscape and
of such Holder in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of Cityscape on the one hand and of
any Holder on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
Cityscape or by such Holder.
In no event shall the obligation of any Indemnifying Party to contribute
under this Section 7 exceed the amount that such Indemnifying Party would have
been obligated to pay by way of indemnification if the indemnification provided
for under Section 6(a) or 6(b) hereof had been available under the
circumstances.
Cityscape and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Holders or the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraphs.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraphs shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this section, no Holder or underwriter shall
be required to contribute any amount in excess of the amount by which (i) in the
case of any Holder, the net proceeds received by such Holder from the sale of
Registrable Securities or (ii) in the case of an underwriter, the total price at
which the Registrable Securities purchased by it and distributed to the public
were offered to the public exceeds, in any such case, the amount of any damages
that such Holder or underwriter 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. Survival. The indemnity and contribution agreements contained in
Sections 6 and 7 and the representations and warranties of Cityscape referred to
in Section 2(d)(i) shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement or the Securities Purchase
Agreement or any underwriting agreement, (ii) any investigation made by or on
behalf of any Indemnified Party or by or on behalf of Cityscape, and (iii) the
consummation of the sale or successive resales of the Registrable Securities.
9. Information by Holders. Each Holder shall furnish to Cityscape such
information regarding such Holder and the distribution and/or sale proposed by
such Holder as Cityscape may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement. The intended method or methods of
disposition and/or sale (Plan of Distribution) of such securities as so provided
by such Investor shall be included without alteration in the Registration
Statement covering the Registrable Securities and shall not be changed without
written consent of such Holder.
10. Replacement Certificates. The certificate(s) representing the Common
Stock or Warrant Shares held by any Investor (or then Holder) may be exchanged
by such Investor (or such Holder) at any time and from time to time for
certificates with different denominations representing an equal aggregate number
of Common Stock or Warrant Shares, as reasonably requested by such Investor (or
such Holder) upon surrendering the same. No service charge will be made for such
registration or transfer or exchange.
11. Transfer or Assignment. The rights granted to the Investors by
Cityscape under this Agreement to cause Cityscape to register Registrable
Securities may be transferred or assigned (in whole or in part) to a transferee
or assignee of Series A Preferred Stock or Warrants, and all other rights
granted to the Investors by Cityscape hereunder may be transferred or assigned
to any transferee or assignee of any Series A Preferred
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Stock or Warrants; provided in each case that Cityscape must be given written
notice by such Investor at the time of or within a reasonable time after said
transfer or assignment, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned; and provided further that the
transferee or assignee of such rights agrees in writing to be bound by the
registration provisions of this Agreement and such transfer or assignment is
permitted by and made in compliance with the Securities Purchase Agreement.
12. Miscellaneous.
(a) Remedies. Cityscape and the Investors acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which any of them may be entitled by
law or equity.
(b) Jurisdiction. Cityscape and each of the Investors (i) hereby
irrevocably submits to the exclusive jurisdiction of the United States District
Court, the New York State courts and other courts of the United States sitting
in New York County, New York for the purposes of any suit, action or proceeding
arising out of or relating to this Agreement and (ii) hereby waives, and agrees
not to assert in any such suit action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit, action or
proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper. Cityscape and each of the Investors consents
to process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this paragraph shall affect or
limit any right to serve process in any other manner permitted by law.
(c) Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be effective upon actual receipt
of such mailing. The addresses for such communications shall be:
to Cityscape: Cityscape Financial Corp.
565 Taxter Road
Elmsford, New York 10523-2300
Fax: (914) 592-7101
Attn: Chief Executive Officer
General Counsel
with copies to: Gibson, Dunn & Crutcher
200 Park Avenue
New York, New York 10166
Fax: (212) 351-4035
Attn: Sean P. Griffiths, Esq.
to the Investors: To each Investor at the address and/or fax number set forth on the
executed counterpart of the signature page of this Agreement.
Any party hereto may from time to time change its address for notices by giving
at least 10 days' written notice of such changed address to the other parties
hereto.
(d) Waivers. Any term of this Agreement may be amended and the observance
of any term hereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of
Cityscape and the holders of more than 66 2/3% of the Registrable Securities.
Any amendment or waiver effected in accordance with this Section shall be
binding upon each holder of any Registrable Securities at the time outstanding,
each future holder of all such securities and Cityscape.
(e) Execution. This Agreement may be executed in counterparts, all of
which shall considered one and the same agreement, it being understood that all
parties need not sign the same counterpart.
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(f) Publicity. Cityscape agrees that it will not disclose, and will not
include in any public announcement, the name of any Investor without its
consent, unless and until such disclosure is required by law or applicable
regulation, and then only to the extent of such requirement. Except as may be
required by law, Cityscape and each Investor shall consult with each other
before issuing any press release or otherwise making any public statements with
respect to this Agreement and shall not issue any press release or make any such
public statement prior to such consultation.
(g) Entire Agreement. This Agreement, together with the Securities
Purchase Agreement, the Certificate of Designations and the Warrants and the
agreements and documents contemplated hereby and thereby, contains the entire
understanding and agreement of the parties, and may not be modified or
terminated except by a written agreement signed by both parties.
(h) Governing Law. This Agreement and the validity and performance of the
terms hereof shall be governed by, interpreted under, and construed in
accordance with the laws of the State of New York, without regard to such
state's principles of conflict of laws.
(i) Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that such severability shall be ineffective if
it materially changes the economic benefit of this Agreement to any party.
(j) Obligations Several and not Joint. The parties acknowledge and agree
that the Investors are not agents, affiliates or partners of each other, that
all representations, warranties, covenants and agreements of the Investors
hereunder are several and not joint, that no Investor shall have any
responsibility or liability for the representations, warrants, agreements, acts
or omissions of any other Investor, and that any rights granted to "Investors"
hereunder shall be enforceable by each Investor hereunder.
(k) Titles. The titles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
(l) Rule 144. Cityscape covenants that it will file all reports required
to be filed by it under the Securities Act and the Exchange Act and that it will
take such further action as holders of Registrable Securities may reasonably
request, all to the extent required from time to time to enable the Investor to
sell Registrable Securities without registration under the Act within the
limitation of the exemptions provided by (a) Rule 144, as such Rule may be
amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the SEC. If at any time Cityscape is not required to file such
reports, it will, upon the request of the Investor, make publicly available
other information so long as necessary to permit sales pursuant to Rule 144.
Upon the request of the Investor, Cityscape will deliver to the Investor a
written statement as to whether it has complied with such requirements.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CITYSCAPE FINANCIAL CORP.
By: /s/ ROBERT C. PATENT
------------------------------------
Name: Robert C. Patent
Title: Executive Vice President
INVESTOR:
Credit Suisse First Boston Corp.
By: /s/ JOHN McAVEY
------------------------------------
Name: John McAvey
Title: Managing Director
INVESTOR:
CIBC Wood Gundy Securities Corp.
By: /s/ NEIL I. THOMAS
------------------------------------
Name: Neil I. Thomas
Title: Managing Director
INVESTOR:
Bear, Stearns & Co. Inc.
By: /s/ YAN ERLIKH
------------------------------------
Name: Yan Erlikh
Title: Senior Managing Director
INVESTOR:
Palona Securities L.L.C.
By: /s/ MICHAEL J. BERNER
------------------------------------
Name: Michael J. Berner
Title: Executive Vice President
INVESTOR:
SoundShore Partners L.P.
*By: AIG International Asset
Management Ltd. as General Partner
of Soundshore Partners L.P.
By: /s/ THOMAS J. LEISHMAN
------------------------------------
Name: Thomas J. Leishman
Title: Vice-President*
INVESTOR:
Halifax Fund, L.P.
By: THE PALLADIN GROUP, L.P.,
as attorney-in-fact
By: PALLADIN CAPITAL MANAGEMENT,
L.L.C., General Partner
By: /s/ ANDREW KAPLAN
------------------------------------
Name: Andrew Kaplan
Title: Sr. Vice President
INVESTOR:
Hick Investment Ltd.
By: THE PALLADIN GROUP, L.P.,
as attorney-in-fact
By: PALLADIN CAPITAL MANAGEMENT,
L.L.C., General Partner
By: /s/ ANDREW KAPLAN
--------------------------------
Name: Andrew Kaplan
Title: Sr. Vice President
INVESTOR:
Colonial Penn Insurance Co.
By: THE PALLADIN GROUP, L.P.,
as attorney-in-fact
By: PALLADIN CAPITAL MANAGEMENT,
L.L.C., General Partner
By: /s/ ANDREW KAPLAN
--------------------------------
Name: Andrew Kaplan
Title: Sr. Vice President
INVESTOR:
Colonial Penn Insurance Co.
By: THE PALLADIN GROUP, L.P.,
as attorney-in-fact
By: PALLADIN CAPITAL MANAGEMENT,
L.L.C., General Partner
By: /s/ ANDREW KAPLAN
--------------------------------
Name: Andrew Kaplan
Title: Sr. Vice President
INVESTOR:
Gleneagles Fund Company
By: THE PALLADIN GROUP, L.P.,
as attorney-in-fact
By: PALLADIN CAPITAL MANAGEMENT,
L.L.C., General Partner
By: /s/ ANDREW KAPLAN
--------------------------------
Name: Andrew Kaplan
Title: Sr. Vice President
INVESTOR:
Galileo Capital LLC
By: /s/ JEFFREY DEVERS
------------------------------------
Name: Jeffrey Devers
Title: Manager
INVESTOR:
FROLEY REVY INVESTMENT CO. INC.
ACCOUNT: NASCO CHEMICAL COMPANY
RETIREMENT TRUST
By: /s/ ANDREA O'CONNER
------------------------------------
Name: Andrea O'Conner
Title: Managing Director
INVESTOR:
FROLEY REVY INVESTMENT CO. INC.
ACCOUNT: PENSION RESERVES INVESTMENT
MANAGEMENT BOARD
By: /s/ ANDREA O'CONNOR
------------------------------------
Name: Andrea O'Connor
Title: Managing Director
INVESTOR:
FROLEY REVY INVESTMENT CO. INC.
ACCOUNT: STATE OF OREGON EQUITY FUND
By: /s/ ANDREA O'CONNOR
------------------------------------
Name: Andrea O'Connor
Title: Managing Director
INVESTOR:
Continental Casualty Company
Designated High Yield
By: /s/ RICHARD W. DUBBERKE
------------------------------------
Name: Richard W. Dubberke
Title: Vice President
INVESTOR:
Continental Casualty Company
By: /s/ RICHARD W. DUBBERKE
------------------------------------
Name: Richard W. Dubberke
Title: Vice President
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