Execution Copy
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered
into as of this 16th day of November, 1999 by and among Equivest Finance, Inc.,
a Delaware corporation (together with its successors and assigns, the
"Company"), and C. Wayne Kinser ("Kinser"), the Sharon Kay Williamson Charitable
Remainder Unitrust, the David Wayne Kinser Charitable Remainder Unitrust, Donald
Clayton, John McFarland and Herbert Patrick, Jr. (collectively with Kinser, the
"Investors").
RECITALS
WHEREAS, the Company, Kinser and certain other parties entered into
an Agreement and Plan of Reorganization dated November 16, 1999 (as the same may
be amended, modified or supplemented from time to time, the "Merger Agreement"),
providing for the merger (the "Merger") of Peppertree Resorts, Ltd., a North
Carolina corporation, with and into Peppertree Acquisition Corp., a Delaware
corporation wholly-owned by the Company;
WHEREAS, pursuant to the Merger Agreement, a subsidiary of the
Company also acquired, or intends to acquire, various other companies,
partnerships, interests and assets owned by Kinser and certain other parties;
WHEREAS, pursuant to the Merger Agreement, the Investors are to
receive at Closing (as defined in the Merger Agreement), and in the future may
receive, shares (the "Shares") of the Company's common stock, par value $.01 per
share (the "Common Stock"), in partial consideration for the Merger and certain
related transactions; and
WHEREAS, as part of the inducement for the parties hereto to enter
into and perform the Merger Agreement, the parties hereto have agreed to enter
into this Agreement in order to provide, among other things, for certain
registration rights.
NOW, THEREFORE, in consideration of the mutual premises, covenants
and conditions set forth herein, the parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition
shall have the meanings assigned to such terms in the Merger Agreement. For the
purposes of this Agreement:
"Commission" means the U.S. Securities and Exchange Commission
or any other governmental authority from time to time administering the
Securities Act;
"Common Stock" has the meaning given it in the third recital;
"CSFB Shares" means those shares of Common Stock defined as
"Registrable Securities" pursuant to the Registration Rights Agreements between
the Company and Credit Suisse First Boston Mortgage Capital LLC dated as of July
17, 1998 and November 14, 1997;
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and the regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time;
"Harris Shares" means those shares of Common Stock defined as
"Registrable Securities" pursuant to the Stockholders' Agreement between the
Company and R. Perry Harris and Karen Harris dated as of July 16, 1998;
"Holder" means any Investor and any Permitted Transferee, in
either case who holds Registrable Securities;
"Minimum Amount" means, at the time a particular notice is
given, more than thirty percent (30%) of the then outstanding Registrable
Securities;
"Permitted Transferee" means any person to whom Registrable
Securities are transferred to the extent that such transfer complies with all of
the provisions of Section 10(i);
"Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document;
"Registrable Securities" means (i) the Shares issued or to be
issued to Investors pursuant to the Merger Agreement or held by Permitted
Transferees and (ii) any securities issued to the Investors or Permitted
Transferees as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such Shares,
including, without limitation, in connection with a combination of shares of
Common Stock, a recapitalization, reorganization, merger, consolidation or
otherwise. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (a) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been transferred in accordance
with such registration statement, (b) such securities shall have been sold to
the public pursuant to Rule 144 under the Securities Act or the holder thereof
is free to sell such securities without volume or manner of sale restrictions
pursuant to Rule 144(k) (or any successor provision) under the Securities Act,
(c) such securities shall have been otherwise transferred and new certificates
for them not bearing a legend restricting further transfer shall have been
delivered by the Company or (d) they shall have ceased to be outstanding;
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Section 2, including, without
limitation: (a) any allocation of salaries and expenses of Company personnel or
other general overhead expenses of the Company,
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or other expenses for the preparation of historical and pro forma financial
statements or other data normally prepared by the Company in the ordinary course
of business; (b) all Registration, application, filing, transfer fees, exchange
listing fees, and register fees; (c) all NASD fees and fees and expenses of
Registration or qualification of Registrable Securities under state securities
or blue sky laws (including any fees and disbursements of underwriters' counsel
in connection with such blue sky laws); (d) all word processing, duplicating and
printing expenses, messenger and delivery expenses; (e) the fees and expenses of
counsel for the Company and the fees of the Company's independent accountants,
including the expenses of any special audits and customary "cold comfort"
letters required by or incident to such performance and compliance; (f) any fees
and disbursements of underwriters and broker-dealers customarily paid by issuers
or sellers of securities; and (g) the reasonable fees and disbursements (not to
exceed for all registrations under this Agreement, $10,000) of one outside
counsel retained by the Holders of a majority of the Registrable Securities
being registered (which shall be the only counsel retained by the Stockholders
with respect to any registration and which counsel shall be reasonably
satisfactory to the Company); provided, however, that in all cases in which the
Company is required to pay Registration Expenses hereunder, Registration
Expenses shall exclude: (i) broker or underwriting fees, discounts, selling
commissions and transfer taxes, if any, in respect of the Registrable
Securities; (ii) all out-of-pocket expenses of any brokers or dealers of any
Holder participating in the Registration; and (iii) all fees and disbursements
of any counsel for any Holder (other than as provided in clause (g) of this
definition) participating in the Registration or for any brokers or dealers
referred to in clause (ii), all of which shall be borne by such Holder.
"Release Date" means the earlier to occur of: (x) the first
anniversary of the Closing Date; or (y) six (6) months after the date on which
the Bennett Funding Group, Inc. has sold, transferred or otherwise disposed of
all of the capital stock of the Company it owns as of the date hereof; and
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Special Registration" means the registration of shares of
equity securities and/or options or other rights in respect thereof (x) to be
offered solely to directors, members of management, employees, consultants or
sales agents, distributors or similar representatives of the Corporation or its
direct or indirect Subsidiaries, solely on Form S-8 or any successor form and
(y) on Form S-4 with respect to any merger, consolidation or acquisition.
2. Registration Rights.
(a) Incidental. If at any time (i) the Company proposes to
make a registered public offering (including for this purpose a registration
effected by the Company for any stockholders other than the Holders) of any
shares of Common Stock under the Securities Act (other than a Special
Registration) and (ii) a registration statement covering the sale of all of the
Registrable
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Securities is not then effective and available for sales thereof by Holders, the
Company will, prior to such filing but only as to filings made after the Release
Date:
(i) promptly give to each Holder a written notice
describing such proposed registration to the Holders and specifying the form and
manner thereof (including, without limitation, whether or not such registration
will be in connection with an underwritten offering of Common Stock and, if so,
the identity of the managing underwriter and whether such offering will be
pursuant to a "best efforts" or "firm commitment" underwriting); and
(ii) use reasonable best efforts to include in such
Registration (and any related qualification under blue sky laws and/or other
compliance) all the Registrable Securities specified in a written request or
requests made by any Holder, which such written request or requests shall be
delivered by a Holder within fifteen (15) days after receipt of the notice from
the Company described in clause (i) and shall specify the amount of Registrable
Securities such person wishes to register (which may be some or all of such
Holder's Registrable Securities) and its intended method of disposition of such
Registrable Securities; provided, however, that (x) the Company shall have the
right, prior to the effective date of the registration statement, to postpone or
withdraw any Registration effected pursuant to this Section 2(a) without
obligation to any Holder (but shall nevertheless pay the Registration Expenses
in connection therewith), without prejudice to the rights of the Holders to
request that a Registration be effected under Section 2(b) hereof; and (y) the
Company shall not be required to effect such Registration unless the Holders of
the Minimum Amount request Registration for sale of such shares.
No Registration effected under this Section 2(a) shall relieve the Company from
its obligation to effect a Registration under Section 2(b).
(b) Demand.
(i) At any time during the eighteen-month period
following the Release Date (as such period may be extended in connection with a
postponement of the filing, or a withdrawal, of the applicable registration
statement for a Valid Business Reason, as provided below), Holders holding more
than the Minimum Amount may request in writing that the Company effect a
Registration under the Securities Act of any of the Registrable Securities (a
"Demand Registration"). In the event the Demand Registration is underwritten,
the Company shall select an underwriter reasonably satisfactory to the Holders
participating in the Registration. If the Board of Directors of the Company, in
its good faith judgment, determines that a Demand Registration should not be
made or continued because (x) it would interfere with any material financing,
acquisition, reorganization, merger, or other transaction involving the Company
or any of its subsidiaries, (y) any required financial statements are
unavailable for reasons substantially beyond the Company's control, or (z) any
other event or condition the disclosure of which would be materially
disadvantageous to the Company or any of its subsidiaries taken as a whole (each
of the foregoing a "Valid Business Reason"), then (i) the Company may postpone
filing a registration statement relating to the Demand Registration until such
Valid Business Reason no longer exists, but in no event for more than one
hundred twenty (120) days, and (ii) in case a registration statement has been
filed relating to a
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Demand Registration, the Company may cause such registration statement to be
withdrawn and its effectiveness terminated or may postpone amending or
supplementing such registration statement until such Valid Business Reason no
longer exists, but in no event for more than one hundred twenty (120) days. In
the event a Valid Business Reason exists and the Company either postpones the
filing of a registration statement relating to a Demand Registration or causes a
registration statement to be withdrawn or postpones amending or supplementing
such registration statement and, as a result, there is a delay in effecting such
Demand Registration for a period exceeding ninety (90) days, then Holders
holding a majority of the Registrable Securities included in such Registration
may withdraw the request therefor and, in such event, the request will not count
for purposes of the limit set forth in Section 2(b)(ii).
(ii) The Company shall not be obligated to effect more
than two Demand Registrations for the Holders pursuant to Section 2(b). A Demand
Registration requested pursuant to Section 2(b) shall not be deemed to have been
effected unless it is declared effective by the SEC and remains effective for
the period specified in Section 5(a)(i) or (ii). Notwithstanding the preceding
sentence, a Registration requested pursuant to Section 2(b) that does not become
effective after the Company has filed a Registration Statement with respect
thereto by reason of the refusal to proceed of the Holders of Registrable
Securities requesting the registration, or by reason of a request by a majority
of the selling Holders participating in such registration that such Registration
be withdrawn, shall be deemed to have been effected by the Company at the
request of such Holders unless (x) the registration statement relating to any
request for Registration pursuant to Section 2(b) is not declared effective
within ninety (90) days of the date such registration statement is filed with
the Commission or (y) the conditions to closing specified in the underwriting
agreement are not satisfied other than as a result of a default or breach
thereunder by any of the Holders.
3. Additional Provisions for Underwritten Offerings.
(a) If a Registration involves an underwritten offering, the
Company shall not be required to include any Registrable Securities in such
offering unless such Holder accepts the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it. No underwriting
agreement (or other agreement in connection with such offering) shall require
any holder of Registrable Securities to make any representations or warranties
to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such holder, the ownership
of such holder's Registrable Securities and such holder's intended method or
methods of disposition and any other representation required by law or to
furnish any indemnity to any Person which is broader than the indemnity
furnished by such holder in Section 7.
(b) If a Registration under Section 2(a) involves an
underwritten offering, and the managing underwriter (or, in the case of an
offering that is not underwritten, a nationally recognized investment banking
firm) shall advise the Company in writing that the number of securities
requested and otherwise proposed to be included in such Registration exceeds the
number which can be sold in such offering without materially and adversely
affecting the offering price, then such Registration shall include:
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(i) first, all Harris Shares and/or CSFB Shares proposed
to be registered in such offering by the Company must be included prior to the
Registrable Securities to prevent a breach of the applicable registration rights
agreement between the Company and such other persons, but only in such amount
and to the extent required by such agreement; and
(ii) second, all of the securities the Company proposes
to sell; and
(iii) third, the number of Registrable Securities and
Company securities of other holders (including shares of Common Stock in
addition to those included pursuant to clause (i) above) that the underwriter
advises will not adversely affect the success of the offering, allocated, pro
rata, among the Holders and the other holders entitled to registration, based
upon the number of shares of Common Stock each such person shall have requested
the Company to include in the offering.
(c) If the Registrable Securities which are being sold
pursuant to a registration requested under Section 2(b) are being sold in an
underwritten offering, the Company shall enter into an underwriting agreement
with the underwriters for such offering, such agreement to be reasonably
satisfactory in form and substance to the underwriters and to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in agreements of this type, including,
without limitation, indemnities to the effect and to the extent provided in
Section 7. The holders of Registrable Securities to be distributed by such
underwriters shall be parties to such underwriting agreement and may, at their
option, require that any or all of the representations and warranties by, and
the agreements on the part of, the Company to and for the benefit of such
underwriters be made to and for the benefit of such holders of Registrable
Securities and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement shall also be conditions
precedent to the obligations of such holders of Registrable Securities.
(d) If and whenever the Company proposes to register any of
its equity securities under the Securities Act, whether or not for its own
account (other than pursuant to a Special Registration), or is required to use
its reasonable best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to Section 2, each Holder, if
required by the managing underwriter in an underwritten offering, agrees by
acquisition of such Registrable Securities not to effect (other than pursuant to
such registration) any public sale or distribution, including, but not limited
to, any sale pursuant to Rule 144, of any Registrable Securities, any other
equity securities of the Company or any securities convertible into or
exchangeable or exercisable for any equity securities of the Company during the
seven (7) days prior to, and for ninety (90) days (unless advised in writing by
the managing underwriter that a longer period, not to exceed 180 days, is
required, or such shorter period as the managing underwriter for any
underwritten offering may advise in writing) after, the effective date of such
registration, to the extent timely notified in writing by the Company or the
managing underwriter, and the Company agrees to cause each holder of any equity
security, or of any security convertible into or exchangeable or exercisable for
any equity security, of the Company purchased from the Company at any time other
than in a public offering to enter into a similar agreement with the Company.
The Company further agrees not to effect (other than pursuant
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to such registration or pursuant to a Special Registration) any public sale or
distribution, or to file any Registration Statement (other than such
registration or a Special Registration) covering any, of its equity securities,
or any securities convertible into or exchangeable or exercisable for such
securities, during the seven (7) days prior to, and for ninety (90) days after,
the effective date of such registration if required by the managing underwriter.
4. Allocation of Expenses. The Company will pay all Registration
Expenses of all Registrations under this Agreement. Each Holder shall be
responsible for all other expenses incurred by it or its agents in connection
with any Registration.
5. Obligations of the Company. Whenever required under this
Agreement to effect the Registration of any Registrable Securities under the
Securities Act, the Company shall:
(a) promptly prepare, and as soon as reasonably practicable,
file with the Commission a registration statement with respect to such
Registrable Securities, make all required filings with the NASD, and use
reasonable best efforts to cause such registration statement to become and
remain effective until the earlier of (i) one-hundred eighty (180) days, or if
such registration statement is related to an underwritten offering, such longer
period as in the reasonable opinion of counsel for the underwriters a prospectus
is required by law to be delivered in connection with the sales of Registrable
Securities by an underwriter or dealer or (ii) such shorter period as is
required to complete the distribution of all of the securities covered by such
registration statement (but in any event not before the expiration of any longer
period required under the Securities Act);
(b) promptly prepare, and as soon as reasonably practicable,
file with the Commission such amendments and supplements to the registration
statement and the prospectus used in connection with the registration as may be
necessary to keep such registration statement effective for so long as required
to comply with the provisions of the Securities Act and to complete the
disposition of all securities covered by the registration statement during the
periods referred to in Section 5(a) in accordance with the intended methods of
disposition by Holders set forth in such registration statement, including at
the request of Holders, any amendments or supplements necessary to reflect any
information regarding a Holder or its plan of distribution;
(c) permit the Holders of Registrable Securities to be
registered, their underwriters, if any, and their respective counsel and
accountants, to participate in the preparation of such registration statements,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto;
(d) furnish to counsel selected by Holders of a majority of
the Registrable Securities included in such Registration copies of all documents
proposed to be filed with the Commission in connection with such Registration;
(e) furnish to each Holder selling Registrable Securities,
without charge, such number of conformed copies of the registration statement
and of each such amendment and supplement thereto (in each case including all
exhibits and documents filed therewith) and such
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number of copies of the prospectus (including each preliminary prospectus and
any summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents as a selling Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities
owned by such Holder; provided, however, that if the Company has delivered
preliminary or final prospectuses to selling Holders and after having done so
the prospectus is amended to comply with the requirements of the Securities Act,
the Company shall promptly notify selling Holders and, if requested, selling
Holders shall immediately cease making offers of Registrable Securities and
return all prospectuses to the Company. The Company shall promptly provide
selling Holders with revised prospectuses and, following receipt of the revised
prospectuses, selling Holders shall be free to resume making offers of the
Registrable Securities;
(f) use reasonable best efforts to register or qualify the
Registrable Securities covered by the registration statement under the
securities or Blue Sky laws of such jurisdictions as selling Holders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable selling Holders to consummate the disposition
of the Registrable Securities in such jurisdictions in accordance with the
intended method or methods of disposition thereof; provided, however, that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business as a foreign corporation in any jurisdiction wherein
it is not so qualified, subject itself to taxation in any jurisdiction where it
is not so subject, or take any action which would subject it to general service
of process in any jurisdiction or wherein it is not so subject;
(g) use reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies, authorities or self-regulatory
bodies as may be necessary by virtue of the business and operations of the
Company to enable the selling Holders thereof to consummate the disposition of
such Registrable Securities in accordance with the intended method or methods of
disposition thereof;
(h) furnish to each selling Holder a signed counterpart,
addressed to such Holder, of a "cold comfort" letter signed by the independent
public accountants who have issued a report on the Company's financial
statements included in such registration statement, covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein) and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements, as are customarily
covered in accountants' letters delivered to the underwriters in underwritten
public offerings of securities and such other matters as the Holders of a
majority of the Registrable Securities included in such Registration may
reasonably request;
(i) notify each selling Holder of any Registrable Securities
covered by such registration statement at any time when the Company has
knowledge that a prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event or existence of any fact as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the
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circumstances then existing, and, as promptly as is practicable, prepare and
furnish to such selling Holder a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include 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 not
misleading in light of the circumstances then existing;
(j) otherwise use reasonable best efforts to comply with all
applicable rules and regulations of the Commission;
(k) use reasonable best efforts to obtain the lifting of any
stop order that might be issued suspending the effectiveness of such
registration statement at the earliest possible moment;
(l) use reasonable best efforts (i) to list such Registrable
Securities on each securities exchange or automated quotation system on which
Shares are then listed, if such securities are not already so listed and if such
listing is then permitted under the rules of such exchange or automated
quotation system, and (ii) to provide a transfer agent and registrar for such
Registrable Securities not later than the effective date of such registration
statement;
(m) enter into such agreements and take such other actions as
the underwriters reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities, including, without limitation, to
the extent that the offering in question is an underwritten offering, preparing
for, and participating in, such number of "road shows" and all such other
customary selling efforts as the underwriters reasonably request in order to
expedite or facilitate such disposition; and
(n) use its reasonable best efforts to take all other steps
necessary to effect the registration of such Registrable Securities contemplated
hereby.
6. Certain Obligations of Holders. It shall be a condition precedent
to the obligations of the Company to take any action under this Agreement with
respect to the Registrable Securities of Holders that Holders meet the following
conditions:
(a) each selling Holder shall furnish to the Company such
information regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be required to effect
the Registration of such Holder's Registrable Securities;
(b) all information specifically with respect to a selling
Holder furnished to the Company by or on behalf of such Holder for use in
connection with the preparation of any registration statement relating to such
Registrable Securities shall be true and correct in all material respects and
shall not omit any material fact necessary to make such information, in light of
the circumstances under which it was disclosed, not misleading;
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(c) each selling Holder shall distribute in connection with
the offering and sale of the Registrable Securities the prospectus or other
offering material permitted by the Securities Act and prepared by the Company,
and only such materials;
(d) each Holder will comply with the provisions of the
Exchange Act and the regulations thereunder;
(e) to assist the Company in qualifying the Registrable
Securities for sale under applicable state securities laws each selling Holder
will advise the Company of each jurisdiction in which it intends to offer or
sell any or all Registrable Securities, and will agree not to offer or sell any
Registrable Securities in any jurisdiction where the Registrable Securities are
not registered or exempt from registration;
(f) each selling Holder will inform the Company in writing of
any and all sales, or other transfers or dispositions of any Registrable
Securities within fifteen (15) calendar days following each such disposition;
(g) in the event of any underwritten public offering of any
Registrable Securities pursuant to Section 2, each Holder shall enter into and
perform its obligations under an underwriting agreement, in the form agreed upon
by the Company and the underwriters selected by it that is customary for the
type of transaction contemplated and reasonably acceptable to the Holders; and
(h) upon the receipt of notice from the Company of the
happening of any event described in Section 5(i), or upon the issuance of any
stop order or other order suspending the effectiveness of the registration
statement, each selling Holder will immediately discontinue disposi tion of the
Registrable Securities pursuant to the registration statement until the filing
of the effective post-effective amendment or the supplemented prospectus
referred to in Section 5(i) or until the withdrawal of such stop order or other
order, as applicable, and, if so directed by the Company, each selling Holder
will deliver to the Company (at the Company's expense) all copies, other than
perma nent file copies then in such Investor's possession, of the prospectus
covering such Registrable Securities current at the time of its receipt of such
notice.
7. Indemnification and Contribution. In the event of any
Registration of any of the Registrable Securities under the Securities Act
pursuant to this Agreement:
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(a) The Company will, to the fullest extent permitted by law,
indemnify and hold harmless each selling Holder and each other person, if any,
who controls any selling Holder within the meaning of the Securities Act or the
Exchange Act (collectively, the "Indemnified Holder Parties"), against any
losses, claims, damages or liabilities, joint or several, to which the
Indemnified Holder Parties may become subject under the Securities Act, the
Exchange Act, state securities or Blue Sky laws, or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon a claim by a third party alleging any of the following
statements, omissions or violations (collectively the "Indemnified Violations"):
(i) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Registrable Securities
were registered under the Securities Act, any preliminary prospectus, or final
prospectus contained in the registration statement, or any amendment or
supplement to such registration statement; (ii) the omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statement therein not misleading; or (iii) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any state securities law or
any rule or regulation promulgated under the Securities Act, the Exchange Act or
any state securities law. The Company will reimburse Indemnified Holder Parties
for any legal (to the extent provided in Section 7(c)) and other expenses
reasonably incurred in connection with defending any such Indemnified Violation;
provided, however, that:
(x) the indemnity agreement contained in this Section
7(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 the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon an Indemnified
Violation arising out of an untrue statement or omission in written information
furnished by any Indemnified Holder Party expressly for use in connection with
such registration;
(y) the Company will not be required to indemnify any
Indemnified Holder Party to the extent that any loss, claim, damage, liability
or action results from such party selling Registrable Securities (1) to anyone
to whom there was not sent or given, at or prior to the written confirmation of
the sale of such Registrable Securities, a copy of the prospectus, as most
recently amended or supplemented, if the Company has previously furnished or
made available to the sellers of the Registrable Securities copies thereof or
(2) during any period following written notice by the Company to such party of
an event described in Section 5(i) or of the issuance of any stop order or other
order suspending the effectiveness of the registration statement; and
(z) the indemnity provided in this Section 7(a) with
respect to any preliminary prospectus shall not apply, if the untrue statement
or alleged untrue statement or omission or alleged omission was corrected in the
final prospectus.
Such indemnity shall remain in full force and effect, regardless of any
investigation made by any Indemnified Holder Parties and shall survive the
transfer of any Registrable Securities by such Holder.
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(b) Each Holder selling Registrable Securities pursuant to a
registration will, severally and not jointly, to the fullest extent permitted by
law, indemnify and hold harmless the Company, each of its directors and officers
and each underwriters (if any) and each person, if any, who controls the Company
or any such underwriter within the meaning of the Securities Act or the Exchange
Act (collectively, the "Indemnified Company Parties"), against any losses,
claims, damages or liabilities, joint or several, to which the Indemnified
Company Parties may become subject under the Securities Act, Exchange Act, state
securities or Blue Sky laws, or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such Registrable Securities
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the registration statement, or any amendment or
supplement to the registration statement, or arising out of or based upon any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information relating to such Holder furnished in writing to the Company by or on
behalf of such Holder specifically for use in connection with the preparation of
such registration statement, prospectus, amendment, or supplement. Each such
Holder will reimburse each of the Indemnified Company Parties for any legal and
other expenses reasonably incurred in connection with defending any such claim,
liability, demand, loss or action; provided, however, that the indemnity
agreement contained in this Section 7(b) 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 Holders of the Minimum Amount
(which consent will not be unreasonably withheld); and provided, further, that
the obligations of Holders hereunder shall be limited to an amount equal to the
proceeds to such Holder of Registrable Securities sold in connection with such
Registration. Such indemnity shall remain in full force and effect, regardless
of any investigation made by any Indemnified Company Parties and shall survive
the transfer of any Registrable Securities by a Holder.
(c) Each party entitled to indemnification under this Section
7 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, however, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld). The failure by the Indemnified Party to deliver written
notice to the Indemnifying Party within a reasonable time of the commencement of
any such action, to the extent such failure is prejudicial to its ability to
defend such action, shall relieve such Indemnifying Party of any liability to
the Indemnified Party under this Section 7(c), but the omission so to deliver
written notice to the Indemnifying Party will not relieve it of any liability
that it may have to any Indemnified Party otherwise than under this Section
7(c). The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall pay such expense
if representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding. No Indemnifying Party in the defense of any such
claim or litigation shall, except with
14
the consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party a release from all
liability in respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) a
selling Holder or any controlling person of a selling Holder, makes a claim for
indemnification pursuant to this Section 7 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 7 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of a selling
Holder or any such controlling person in circumstances for which indemnification
is provided under this Section 7; then, in each such case, the Company and the
selling Holders will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportions so that Investors are responsible for the portion represented
by the percentage that the public offering price of its Registrable Securities
offered by the registration statement bears to the public offering price of all
securities offered by such registration statement, and the Company is
responsible for the remaining portion; provided, however, that, in any such
case, (A) each such selling Holder will not be required to contribute any amount
in excess of the proceeds to it of all Registrable Securities sold by it
pursuant to such registration statement, and (B) no person or entity guilty of
fraudulent misrepresentation, within the meaning of Section 11(f) of the
Securities Act, shall be entitled to contribution from any person or entity who
is not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and the selling Holders
under this Section 7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 7, or otherwise.
(f) All fees and expenses that an Indemnified Party is
entitled to receive from an Indemnifying Party under this Section 7 shall be
reimbursed as they are incurred, provided that each such Indemnified Party shall
promptly repay such fees and expenses if it is finally judicially determined
that such Indemnified Party is not entitled to indemnification hereunder.
8. Amendment of Registration Rights. Any provision of this Agreement
may be amended or the observance thereof may be waived either generally or in a
particular instance and either retroactively or prospectively, only with the
written consent of the Company and Holders holding the Minimum Amount. Any
amendment or waiver effected in accordance with this Section 8 shall be binding
upon each Investor and the Company. Nothing herein shall prevent a holder of
Registrable Securities from waiving its individual rights.
9. Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may permit the sale of
restricted securities (as that
15
term is defined in Rule 144(a)(3) under the Securities Act) to the public
without registration, the Company agrees to use commercially reasonable efforts:
(a) to make and keep public information available as those
terms are understood in Rule 144 under the Securities Act, at all times from and
after ninety (90) days following the effective date of the first registration
under the Securities Act filed by the Company for an offering of its securities
to the general public;
(b) to file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act at any time after it has become subject to such reporting
requirements; and
(c) so long as any holder of Registrable Securities owns any
restricted securities, to furnish to such holder upon request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 (at any time from and after ninety (90) days following the effective
date of the first registration statement filed by the Company for an offering of
its securities to the general public), and of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as a holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any such securities without
registration.
10. Miscellaneous.
(a) Entire Agreement. This Agreement and the documents
referred to herein constitute the entire agreement among the parties relating to
the subject matter hereof, and supersedes all prior agreements, arrangements,
and understandings, written or oral, relating to the subject matter hereof.
(b) Specific Performance. Each Holder agrees that irreparable
damage would occur and that the Company would not have any adequate remedy at
law 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 Company shall be entitled to an injunction or
injunctions to prevent breaches by any Holder of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which it is entitled at law or in equity. The Company
agrees that irreparable damage would occur and that Holder would not have any
adequate remedy at law 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 Holder holding the Minimum Amount shall
be entitled to an injunction or injunctions to prevent breaches by the Company
of this Agreement and to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which it is entitled at
law or in equity
16
(c) Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and permitted assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement
except as expressly provided in this Agreement.
(d) Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be sent by courier service or certified
mail, return receipt requested, charges pre-paid, or by facsimile transmission,
to the address or facsimile number specified below:
If to the Company:
Equivest Finance, Inc.
2 Clinton Square
Syracuse, New York 13202
Attn: Richard Winkler
Fax: (315) 422-9477
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037-1420
Attn: Eric R. Markus
Fax: (202) 663-6363
If to Investors:
10 Bear Mountain Road
Asheville, North Carolina 28805
with a copy to:
Holland & Knight LLP
2100 Pennsylvania Avenue, N.W.
Suite 400
Washington, D.C. 20037-3202
Attn: Mel S. Weinberger
Fax: (202) 955-5564
or to such other address or facsimile number as the person may specify in a
notice duly given to the sender as provided herein. Notice given hereunder will
operate and be deemed effective and received: (a) in the case of facsimile, when
received by the recipient in legible form and sender has received an electronic
confirmation of receipt of the transmission (provided, however, that such
17
transmission and confirmation are received by 5:00 p.m. on a business day;
otherwise, such transmission shall be deemed to have been received on the next
business day); (b) in the case of delivery by courier, upon the date of delivery
indicated in the records of such courier; or (c) in the case of certified mail,
upon signing of the return receipt
(e) Headings; Counterparts. Headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
(f) Further Assurances. Each of the parties hereto agrees to
execute and deliver those writings and documents reasonably required to more
fully carry out the purposes of this Agreement and the transactions contemplated
hereby.
(g) Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York, exclusive of any choice of law principles that would result in a
choice of law other than the laws of the State of New York, except to the extent
superseded or preempted by the laws of the United States. Whenever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under said laws; provided, however, that if any provision of
this Agreement shall be held to be invalid or unenforceable under applicable
law, such provision shall be ineffective only to the extent of such invalidity
or unenforceability, without invalidating the remainder of such provision or the
remainder of the provisions of this Agreement.
(h) Consent of Jurisdiction. The parties consent to and waive
any objection to the jurisdiction of the United States District Court for the
Northern District of New York, or any state court located in Onondaga County,
New York, over the person of any party to this Agreement, for purposes of any
action brought under or as the result of a breach of this Agreement. The parties
agree that venue of any action brought under or as the result of a breach of
this Agreement shall be proper in the courts named above, and each party waives
any objection to such venue.
(i) Assignment. The registration rights of Investors with
respect to any Registrable Securities may be transferred to any transferee of
such Registrable Securities who acquires, in the case of the initial or any
subsequent transferee of Kinser, at least 20% of the greatest number of Shares
issued pursuant to the Merger Agreement to Kinser or, in the case of the initial
or any subsequent transferee of any other Investor, at least 50% of the greatest
number of Shares issued to such Investor, and in either case in a transaction
which does not cause such Registrable Securities to cease to be Registrable
Securities; provided, however, that (x) the transferring Investor transferring
or Permitted Transferee shall give the Company written notice at or prior to the
time of transfer stating the name and address of the transferee and identifying
the securities with respect to which the rights under this Agreement have been
transferred, (y) such transferee shall agree in writing, in form and substance
reasonably satisfactory to the Company, to be bound by the provisions of this
Agreement, and (z) such transfer is not in violation of Section 7.08 of the
Merger Agreement.
18
(j) Term. This Agreement shall be effective as of the date
hereof and shall continue in effect thereafter until the earlier of (a) its
termination by the consent of the parties hereto or their respective successors
in interest, and (b) the date on which no Registrable Securities remain
outstanding.
(k) No Inconsistent Agreements. After the date hereof, the
Company shall not enter into any agreement (an "Additional Registration Rights
Agreement") granting to any person the right to require the Company to register,
or permitting such person to participate in a registration by the Company of,
Common Stock (or any other security of the Company issuable upon the conversion
or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of, such Common Stock, including, without limitation, in connection
with a combination of shares of Common Stock, a recapitalization,
reorganization, merger, consolidation or otherwise, to the extent that the
registration rights granted under such Additional Registration Rights Agreement
(i) are inconsistent with the provisions of this Agreement, or (ii) may be
exercised earlier than the Release Date.
[Execution Page to Follow]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed under seal by their respective duly authorized officers as of the day
and year first above written.
COMPANY
Equivest Finance, Inc.
/s/
- -----------------------------
By: Richard C. Breeden
Its: CEO
INVESTORS
/s/
- -----------------------------
C. Wayne Kinser
/s/
- -----------------------------
Donald Clayton
/s/
- -----------------------------
John McFarland
/s/
- -----------------------------
Herbert Patrick, Jr.
SHARON KAY WILLIAMSON
CHARITABLE REMAINDER
UNITRUST
By: First Union National Bank, Trustee
Name: /s/
--------------------------------
Title: Vice President & Trust Officer
-------------------------------
DAVID WAYNE KINSER
CHARITABLE REMAINDER
UNITRUST
By: First Union National Bank, Trustee
Name: /s/
--------------------------------
Title: Vice President & Trust Officer
-------------------------------