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EXHIBIT 10.37
REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 22, 1996
BY AND AMONG
CITYSCAPE FINANCIAL CORP.
AS THE COMPANY,
AND
PERSONS LISTED ON SCHEDULE I HERETO
This Registration Rights Agreement is made and entered into as of November
22, 1996, by and among Cityscape Financial Corp., a Delaware corporation (the
"Company"), and the Person(s) listed on Schedule I hereto (the "Holders").
BACKGROUND
The Company's execution and delivery of this Agreement is a condition to
the Holders' entering into the Option Purchase Agreement, dated as of November
, 1996 among the Holders and ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Selling Holder") pursuant
to which the Holders agree to purchase from the Selling Holder shares of the
Company's Common Stock or options to purchase such Common Stock (the "Purchase
Agreement"). In order to induce the Holders to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights provided
for in this Agreement to the Holders and their respective direct and indirect
transferees;
AGREEMENT
This Agreement shall become effective upon the consummation of the
transactions contemplated by the Purchase Agreement. In the event such
transactions are not consummated on or before January 31, 1997, this Agreement
shall be null and void and be of no effect on the parties hereto. Upon
effectiveness of this Agreement, the parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
Advice: As defined in the last paragraph of Section 3 hereof.
Affiliate: As to any specified Person shall mean any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Registration Rights Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof.
Business Day: With respect to any act to be performed hereunder, each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York or other applicable place where such
act is to occur are authorized or obligated by applicable law, regulation or
executive order to close.
Closing Date: January , 1997, or such other time on the same or such
other date not later than January , 1997 as the Holders and Selling Holder may
agree.
Commission: The Securities and Exchange Commission.
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Common Stock: Common stock, $0.01 par value per share, of the Company.
Company: Cityscape Financial Corp., a Delaware corporation, and any
successor corporation thereto.
Company Registration Effectiveness Date: The earlier of (i) the date the
Commission declares effective the first registration statement initially filed
after the date of the Purchase Agreement registering the Company's sale of newly
issued Common Stock and (ii) March 31, 1997.
Controlling Person: As defined in Section 5(a) hereof.
Effectiveness Period: As defined in Section 2(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission pursuant thereto.
Indemnified Person: As defined in Section 5(a) hereof.
Person: Any individual, partnership, joint venture, corporation, trust or
unincorporated organization.
Proceeding: An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or, to the knowledge of the Person subject thereto,
threatened.
Prospectus: The prospectus included in the Shelf Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the resale of any portion of the Restricted Securities covered by
such Shelf Registration Statement, and all other amendments and supplements to
any such prospectus, including posteffective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such prospectus.
Holders: The Persons listed on Schedule I hereto.
Shelf Registration Statement: The registration statement of the Company
that covers the resale of any of the Restricted Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference, if any, in such
registration statement.
Rule 144: Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
Rule 158: Rule 158 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
Rule 174: Rule 174 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
Rule 415: Rule 415 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
Rule 424: Rule 424 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
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Restricted Securities: The shares of Common Stock purchased by each Holder
pursuant to the terms of the Purchase Agreement or upon exercise of the options
purchased pursuant to the terms of the Purchase Agreement until, in the case of
any such share of Common Stock, (i) the date on which it has been registered
effectively pursuant to the Securities Act and disposed of in accordance with
the Shelf Registration Statement relating to it, or (ii) the date on which the
shares of Common Stock are distributed to the public pursuant to Rule 144 (or
any similar provisions then in effect) or are saleable pursuant to Rule 144(k)
promulgated by the Commission pursuant to the Securities Act.
2. SHELF REGISTRATION
(a) The Company agrees to file with the Commission as soon as reasonably
practicable after the Closing Date a Shelf Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Restricted Securities. The Shelf Registration Statement shall initially be
on Form S-3 under the Securities Act or another appropriate form permitting
registration of such Restricted Securities for resale by the Holders in the
manner or manners reasonably designated by them. The Company shall not permit
any securities other than the Restricted Securities to be included in the Shelf
Registration Statement. The Company shall use its reasonable efforts, as
described in Section 3, to cause the Shelf Registration Statement to be declared
effective pursuant to the Securities Act as promptly as is reasonably
practicable following the filing thereof, but in no event earlier than the
Company Registration Effectiveness Date, and to keep the Shelf Registration
Statement continuously effective under the Securities Act thereafter for the
period ending three years after the Closing Date (except during periods
following the filing of a post effective amendment thereto and prior to the
declaration of the effectiveness of such post effective amendment; provided, the
Company shall use its reasonable efforts to cause any such post effective
amendment to be declared effective as soon as practicable) (subject to extension
pursuant to clause (b)), or such shorter period as may be specified by the
Commission in amending Rule 144 or ending when there cease to be outstanding any
Restricted Securities (the "Effectiveness Period").
(b) The Company shall use its reasonable efforts to keep the Shelf
Registration Statement continuously effective (except during periods following
the filing of a post effective amendment thereto and prior to the declaration of
the effectiveness of such post effective amendment; provided, the Company shall
use its reasonable efforts to cause any such post effective amendment to be
declared effective as soon as practicable) by supplementing and amending the
Shelf Registration Statement as required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration Statement if required by the Securities Act or reasonably requested
by the Holders of a majority of the Restricted Securities covered by such Shelf
Registration Statement.
3. REGISTRATION PROCEDURES
In connection with the Company's registration obligations hereunder, the
Company shall effect such registration on the appropriate form available for the
sale of the Restricted Securities to permit the sale of the Restricted
Securities in accordance with the method or methods of disposition thereof
specified by the Holders of a majority of the Restricted Securities covered
thereby, and pursuant thereto the Company shall as expeditiously as reasonably
possible:
(a) No fewer than five Business Days prior to the initial filing of
the Shelf Registration Statement or Prospectus and no fewer than two
Business Days prior to the filing of any amendment or supplement thereto
(other than any document that would be incorporated or deemed to be
incorporated therein by reference), furnish to the Holders, copies of all
such documents proposed to be filed, which documents (other than those
incorporated or deemed to be incorporated by reference) will be subject to
the review of such Holders. The Company shall not file such Shelf
Registration Statement or related Prospectus or any amendments or
supplements thereto to which the Holders of a majority of the Restricted
Securities covered thereby shall reasonably object on a timely basis;
(b) Prepare and file with the Commission such amendments, including
post-effective amendments, to each Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement
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continuously effective for the Effectiveness Period; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act and the Exchange Act
with respect to the disposition of all securities covered by such Shelf
Registration Statement during such period in accordance with the intended
methods of disposition by the selling Holders thereof contemplated hereby
and set forth in such Shelf Registration Statement as so amended or in such
Prospectus as so supplemented.
(c) Notify the Holders promptly (and in the case of an event specified
by clause (i)(A) of this paragraph in no event fewer than two Business Days
prior to such filing), and (if requested by any such Person), confirm such
notice in writing, (i)(A) when a Prospectus or any Prospectus Supplement or
post-effective amendment is proposed to be filed, and (B) with respect to
the Shelf Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Commission or any
other federal or state governmental authority for amendments or supplements
to the Shelf Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the Commission, any state securities
commission, any other governmental agency or any court of any stop order,
order or injunction suspending or enjoining the use or the effectiveness of
the Shelf Registration Statement or the Initiation of any proceedings for
that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Restricted Securities for sale in any
jurisdiction, or the initiation or threat of any proceeding for such
purpose, and (v) of the happening of any event that makes any statement
made in such Shelf Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes
in such Shelf Registration Statement, Prospectus or documents so that, in
the case of the Shelf Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, not misleading, and that in the case of the Prospectus, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
(d) Use its reasonable efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of any order enjoining or suspending the use
or effectiveness of the Shelf Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of
the Restricted Securities for sale in any jurisdiction, at the earliest
reasonable practicable moment;
(e) If requested by the Holders, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as
Holders indicate relates to them or otherwise reasonably request be
included therein, and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after
the Company has received notification of the matters to be incorporated in
such Prospectus supplement or posteffective amendment; provided, however,
that the Company shall not be required to take any action pursuant to this
Section 3(e) that would, in the opinion of counsel for the Company, violate
applicable law;
(f) Furnish to each Holder without charge, at least one conformed copy
of the Shelf Registration Statement and each amendment thereto, including
financial statements (but excluding schedules, all documents incorporated
or deemed to be incorporated therein by reference);
(g) Deliver to each Holder as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons reasonably request; and the Company
hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the Holders in connection with the offering
and sale of the Restricted Securities covered by such Prospectus and any
amendment or supplement thereto;
(h) Prior to any public offering of the Restricted Securities, use its
reasonable efforts to register or qualify or cooperate with the Holders in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Restricted Securities for offer and
sale under the
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securities or "Blue Sky" laws of such jurisdictions within the United
States as any Holder reasonably requests in writing and to cause the
offering of the Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other governmental
agencies or authorities within the United States, except as may be required
as a consequence of the selling Holder's business (in which case the
Company will cooperate in all reasonable respects with the filing of such
Shelf Registration Statement therewith and granting of approvals thereby),
as may be necessary to enable the selling Holders to consummate the
disposition of such Restricted Securities; keep each such registration or
qualification (or exemption therefrom) or approval effective during the
period such Shelf Registration Statement is required to be kept effective
and do any and all other acts necessary or advisable to enable the
disposition in such jurisdictions of the Restricted Securities covered by
the Shelf Registration Statement; provided, however, that the Company shall
not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action that would subject
it to general service of process in any such jurisdiction where it is not
then so subject or subject the Company to any tax in any such jurisdiction
where it is not then so subject;
(i) In connection with any sale or transfer of the Restricted
Securities that will result in such securities no longer being the
Restricted Securities, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing the Restricted
Securities to be sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with The Depository
Trust Company and to enable such Restricted Securities to be in such
denominations and registered in such names as the Holders may request at
least two Business Days prior to any sale of the Restricted Securities;
(j) Upon the occurrence of any event contemplated by Section 3(c)(v)
hereof, as promptly as practicable, prepare a supplement or amendment,
including, if appropriate, a post-effective amendment, to the Shelf
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference,
and file any other required document so that, as thereafter delivered, such
Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(k) Comply with applicable rules and regulations of the Commission and
make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act),
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year)
commencing on the first day of the first fiscal quarter after the effective
date of the Shelf Registration Statement, which statement shall cover said
period, consistent with the requirements of Rule 158; and
(l) List all Common Stock covered by such Shelf Registration Statement
on the exchange or system, if any, on which the Common Stock of the Company
is then listed.
The Company may require each seller of the Restricted Securities as to
which any registration is being effected to: (i) furnish to the Company such
information regarding the distribution of such Restricted Securities as is
required by law to be disclosed in the Shelf Registration Statement and (ii)
provide to the Company a signed writing accepting and acknowledging its rights
and obligations hereunder. The Company may exclude from such registration the
Restricted Securities of any holder of Restricted Securities who unreasonably
fails to furnish such information or signed writing at least 10 Business Days
prior to the effective date of such Shelf Registration Statement.
Each Holder agrees by acquisition of the Restricted Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), or 3(c)(v) hereof, such
Holder will forthwith discontinue disposition of such Restricted Securities
covered by such Shelf Registration Statement or Prospectus until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received
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copies of any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus.
The registration rights of the Holders pursuant to this Agreement and the
ability to offer and sell Restricted Securities pursuant to the Shelf
Registration Statement are subject to the conditions and limitations contained
in this paragraph, and each Holder will be deemed to have agreed with the
Company that if the Board of Directors of the Company determines in its good
faith judgment, as evidenced by a resolution of the Board of Directors, that the
use of any Prospectus would require the disclosure of material information that
the Company has a bona fide business purpose for preserving as confidential or
the disclosure of which would impede the Company's ability to consummate a
significant transaction, and that the Company is not otherwise required by
applicable securities laws or regulations to disclose, upon written notice of
such determination by the Company, the rights of the Holders to offer, sell or
distribute any Restricted Securities pursuant to the Shelf Registration
Statement or to require the Company to take action with respect to the
registration or sale of any Restricted Securities pursuant to the Shelf
Registration Statement shall be suspended until the date upon which the Company
notifies the Holders in writing that suspension of such rights for the grounds
set forth in this paragraph is no longer necessary, and the Company agrees to
give such notice as promptly as practicable following the date that such
suspension of rights is no longer necessary (but in any event, any such
suspension shall be effective for a period not in excess of 60 consecutive days
and for no more than 150 days in any calendar year provided, however, such 60
day period may upon notice to the Holders, be extended for up to an additional
30 days if such additional time is reasonably necessary to complete financial
statements or reports or other disclosure materials reasonably necessary to be
disclosed in the Shelf Registration Statement).
4. REGISTRATION EXPENSES
All fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by it whether or not the Shelf
Registration Statement is filed or becomes effective and whether or not any
securities are issued or sold pursuant to the Shelf Registration Statement. The
fees and expenses referred to in the foregoing sentence shall include, without
limitation, (a) all registration and filing fees (including, without limitation,
fees and expenses in compliance with securities or "Blue Sky" laws (b) printing
expenses (including, without limitation, expenses of printing Prospectuses if
the printing of Prospectuses is requested by the Holders of a majority of the
Restricted Securities included in the Shelf Registration Statement), (c)
messenger, telephone and delivery expenses, (d) fees and disbursements of
counsel for the Company; (e) Securities Act liability insurance, if the Company
desires such insurance, and (f) fees and expenses of all other Persons retained
by the Company. In addition, the Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, and the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange. Notwithstanding the
foregoing or anything in this Agreement to the contrary, each Holder shall pay
all underwriting discounts and commissions of any underwriters or broker-dealers
with respect to any Restricted Securities sold by it.
5. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder and his
representatives and agents (an "Indemnified Person"), from and against any and
all losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary Prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the case of any
Prospectus or form of Prospectus or supplement thereto, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Indemnified Person furnished to the Company by or on
behalf of such Indemnified Person; provided that the foregoing indemnity with
respect to any preliminary Prospectus shall not inure to the benefit
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of any Indemnified Person from whom the Person asserting such losses, claims,
damages, liabilities and judgments purchased securities if such untrue statement
or omission or alleged untrue statement or omission made in such preliminary
Prospectus is eliminated or remedied in the Prospectus and a copy of the
Prospectus shall not have been furnished to such Person in a timely manner
provided such failure is not as a result of an action or inaction on the part of
the Indemnifying Person.
(b) In case any action shall be brought against any Indemnified Person,
based upon the Shelf Registration Statement or any such Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company, such Indemnified Person shall promptly notify the
Company in writing and the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Person and
payment of all fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person, unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel for the Indemnified Parties
or (iii) the named parties to any such action (including any impleaded parties)
include both such Indemnified Person and the Company and such Indemnified Person
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Company (in which case the Company shall not have the right to assume the
defense of such action on behalf of such Indemnified Person), provided, however,
that the Company shall not, in connection with any such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Indemnified Persons, which firm shall be designated in
writing by such Indemnified Persons; and provided, however, that all such fees
and expenses shall be reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Indemnified Person from and against
any loss or liability by reason of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(c) In connection with the Shelf Registration Statement, each Holder
participating in such Shelf Registration Statement agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
and any Person controlling the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Indemnified Person but only with
reference to information relating to such Indemnified Person furnished by or on
behalf of such Indemnified Person. In case any action shall be brought against
the Company, any of its directors, any such officer or any Person controlling
the Company based on such Shelf Registration Statement and in respect of which
indemnity may be sought against any Indemnified Person, the Indemnified Person
shall have the rights and duties given to the Company (except that if the
Company shall have assumed the defense thereof, such Indemnified Person shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person), and the Company, its
directors, any such officers and any Person controlling the Company shall have
the rights and duties specified for Indemnified Persons in Section 5(b) hereof.
(d) If the indemnification provided for in this Section 5 is unavailable to
an indemnified party in respect of any losses, claims, damages, liabilities or
judgments referred to therein, then each 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, claim, damages,
liabilities and judgments (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and each
Indemnified Person on the other hand from the offering of the Restricted
Securities or (ii) if the allocation provided by
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clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and each such Indemnified
Person in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company and each such
Indemnified Person shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the Company
or such Indemnified Person and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 5(d) were determined by pro rata
allocation (even if the Indemnified Persons 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 paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph 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 5, no Indemnified Person shall be
required to contribute any amount in excess of the amount by which the total net
proceeds received by it in connection with the sale of the Restricted Securities
pursuant to this Agreement exceeds the amount of any damages which such
Indemnified Person 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. The Indemnified Persons'
obligations to contribute pursuant to this Section 5(d) are several in
proportion to the respective amount of Restricted Securities included in any
such Shelf Registration Statement by each Indemnified Person and not joint.
6. RULE 144
The Company shall use its reasonable efforts to file the reports required
to be filed by it under the Securities Act and the Exchange Act in a timely
manner and, if at any time it is not required to file such reports but in the
past had been required to or did file such reports, it will, upon the request of
any Holder, make available other information as required by, and so long as
necessary to permit, sales of its Restricted Securities pursuant to Rule 144.
7. MISCELLANEOUS
(a) Remedies. In the event of a breach by the Company, or by a Holder of
any of their obligations under this Agreement, each Holder or the Company, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company and each Holder agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of any of the provisions of this Agreement and hereby further agrees that,
in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(b) No Piggyback on Registrations. After the date hereof, the Company shall
not grant to any of its security holders (other than the Holders) the right to
include any of its securities in the Shelf Registration Statement other than
Restricted Securities.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
without the written consent of the Holders of a majority of the Restricted
Securities.
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(d) Notices. All notices and other communications provided for herein shall
be made in writing by handdelivery, next-day air courier, certified first class
mail, return receipt requested, telex or telecopy:
if the Company:
Cityscape Financial Corp
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▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
if to any Holder:
at the address and telephone numbers set forth for such Holder in the
Purchase Agreement
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when (i) delivered by hand, if
personally delivered, (ii) one Business Day after being timely delivered to a
next-day air courier, (iii) five Business Days after being deposited in the
mail, postage prepaid, if mailed, (iv) when answered back, if telexed or (v)
when receipt is acknowledged by the recipient's telecopier machine, if
telecopied.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Holder. Notwithstanding the foregoing, no
transferee shall have any of the rights granted under this Agreement until such
transferee shall acknowledge its rights and obligations hereunder by a signed
written statement of such transferee's acceptance of such rights and
obligations.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed within the State of New York without regard to principles of
conflicts of law.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(i) Authority. The Company hereby represents to the parties listed on
Schedule I hereto that this Agreement has been duly authorized, executed and
delivered.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
CITYSCAPE FINANCIAL CORP.
By: /s/ ▇▇▇▇▇▇ ▇. Patent
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Patent
Title: Executive Vice President
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
MUTUAL SHARES FUND
By: FRANKLIN MUTUAL ADVISERS, INC.
as agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
MUTUAL QUALIFIED FUND
By: FRANKLIN MUTUAL ADVISERS, INC.
as agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
MUTUAL BEACON FUND
By: FRANKLIN MUTUAL ADVISERS, INC.
as agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
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MUTUAL DISCOVERY FUND
By: FRANKLIN MUTUAL ADVISERS, INC.
as agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
MUTUAL EUROPEAN FUND
By: FRANKLIN MUTUAL ADVISERS, INC.
as agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE ORION FUND LIMITED
By: FRANKLIN MUTUAL ADVISERS, INC.
as agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
MUTUAL SHARES SECURITIES FUND
By: FRANKLIN MUTUAL ADVISERS, INC.
as agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
MUTUAL DISCOVERY SECURITIES FUND
By: FRANKLIN MUTUAL ADVISERS, INC.
as agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
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SCHEDULE I
MUTUAL SHARES FUND
MUTUAL QUALIFIED FUND
MUTUAL BEACON FUND
MUTUAL DISCOVERY FUND
MUTUAL EUROPEAN FUND
THE ORION FUND LIMITED
MUTUAL SHARES SECURITIES FUND
MUTUAL DISCOVERY SECURITIES FUND