THIRD AMENDMENT TO STIPULATION AND ORDER
THIRD
AMENDMENT TO STIPULATION AND ORDER
THIS
THIRD AMENDMENT TO STIPULATION AND ORDER (this "Amendment") is made and entered
into as of the 7th day of July, 2008, by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇. ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Revocable Trust, Central Florida Investments (collectively, the
"Shareholders") and Bluegreen Corporation, a Massachusetts corporation (the
"Company").
WHEREAS,
the Shareholders and the Company and its directors are parties to that certain
Stipulation and Order, dated October 16, 2006, as amended by that certain
Amendment to Stipulation and Order, dated May 21, 2007 and that certain Second
Amendment to Stipulation and Order, dated October 15, 2007 (as so amended, the
"Stipulation"), pursuant to which, among other things, the parties thereto
settled in full the action among them which was then pending in the United
States District Court for the Southern District of Florida:
WHEREAS,
since October 17, 2006. the Shareholders have disposed of 1,160,304 shares of
common stock, par value $0.01 per share, of the Company ("Common Stock")
beneficially owned by them in accordance with the terms and conditions of the
Stipulation and are, and have been at all times, in compliance with the terms
and conditions of the Stipulation;
WHEREAS,
as of the date hereof, the Shareholders are the" beneficial owners of 8,472,096
shares of Common Stock:
WHEREAS.
the Company previously announced that it may in the future pursue a rights
offering to its shareholders of up to $100 million of shares of Common Stock
(such rights offering, as the terms and conditions thereof may be amended from
time to time by the Board of Directors of the Company, the "Rights
Offering");
WHEREAS,
the Company wishes to allow the Shareholders, pursuant to the terms and
conditions oldie Rights Offering governing the exercise of basic subscription
rights, to acquire shares of Common Stock upon exercise of the basic
subscription rights granted to the Shareholders in the Rights Offering by virtue
of the Shareholders' ownership of shares of Common Stock on the record date for
the Rights Offering;
WHEREAS,
the Shareholders and the Company desire to further amend the Stipulation so as
to permit the Shareholders, pursuant to the terms and conditions of the Rights
Offering governing the exercise of basic subscription rights, to acquire shares
of Common Stock upon exercise of the basic subscription rights granted to the
Shareholders in the Rights Offering by virtue of the Shareholders' ownership of
shares of Common Stock on the record date for the Rights Offering, and to sell
their holdings of Common Stock (including any and all shares of Common Stock
that may be acquired by the Shareholders in the Rights Offering) over an
extended period.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements contained in this Amendment, the parties hereto agree as
follows:
1.
Stipulation. The foregoing premises are true and correct and are incorporated by
reference herein as an integral part of this Amendment. Capitalized terms used,
but not defined, herein shall have the meanings ascribed to them in the
Stipulation. Except as expressly amended by this Amendment, the Stipulation
shall remain unchanged, and the Stipulation, as amended. shall be in full force
and effect.
2. Amendment
to Section 1(a) of the Stipulation. The first sentence of Section 1(a) of the
Stipulation is hereby deleted in its entirety and is replaced by the
following:
(a)
"The
Shareholders shall prior to October 16, 2012, sell and fully divest their
beneficial ownership in all of their holdings of Common Stock (including any and
all shares of Common Stock that may be acquired by the Shareholders in the
Rights Offering)."
3. Amendment
to Section 2(c) of the Stipulation. Section 2(c) of the Stipulation is hereby
deleted in its entirety.
4. Amendment
to Section 3(a)(i) of the Stipulation. Section 3(a)(i) of the Stipulation is
hereby deleted in its entirety and is replaced by the following:
(i)
"seek.
oiler or propose (whether publicly or otherwise) to effect, or cause or
participate in or any way assist any other person to effect or seek, offer or
propose (whether publicly or otherwise) to effect or participate in. (A) any
acquisition of any securities (or beneficial ownership thereof) or assets of the
Company. ▇▇▇▇▇▇ Corporation. or BankAtlantic Bancorp, Inc. or any of their
respective parents, subsidiaries affiliates or divisions (each. a "Restricted
Entity"): (B) any tender or exchange offer, merger or other business combination
involving any Restricted Entity; (C) any recapitalization, restructuring,
liquidation dissolution or other extraordinary transaction with respect to any
Restricted Entity: or (D) any "solicitation" of "proxies" (as such terms are
used in the Exchange Act and in the proxy rules of the Securities
and
Exchange
Commission) or consents to vote any voting securities of any
Restricted
Entity: provided however, that nothing herein shall prohibit the Shareholders
from (X) disposing of their shares of Common Stock as required by Section 1 of
the Stipulation or (Y) acquiring shares of Common Stock upon exercise of the
basic subscription rights granted to the Shareholders in any Rights Offering by
virtue of the Shareholders' ownership of shares of Common Stock on the record
date for the Rights Offering; provided further however, that. notwithstanding
the terms and conditions of the Rights Offering, the Shareholders acknowledge
that they arc prohibited from acquiring any shares of Common Stock upon exercise
of over-subscription rights granted to the Company's shareholders in the Rights
Offering, regardless of whether the Rights Offering is fully subscribed
for;"
5. Shares
of Common Stock Acquired in the Rights Offering. The Shareholders acknowledge
and agree that the Shareholders' ownership of any and all shares of Common Stock
acquired in the Rights Offering shall be subject to, and governed by, the terms
and conditions of the Stipulation and the Rights Plan, including, without
limitation, the provisions thereof relating to the sale and voting of the shares
of Common Stock owned by the Shareholders.
6. Rights
Plan. The Shareholders and the Company acknowledge and agree that the provisions
of Section 6 of the Stipulation shall again be implemented so as to amend
Section 1(a) of the Rights Plan to accommodate the amendment of Sections 1(a)
and 3(a)(i) of the Stipulation made by this Amendment.
7. Miscellaneous.
This Amendment and the rights and obligations of the parties hereto, shall be
governed by and construed in accordance with the laws of the State of Florida.
without reference to principles of conflict of laws. The captions of this
Amendment are not part of the provisions hereof and shall have no force or
effect. This Amendment may he executed in several counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same instrument.
SIGNATURES
ON FOLLOWING PAGE
IN
WITNESS WHEREOF, the Company and the Shareholders have caused this Amendment to
be executer on the date first above written.
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BLUEGREEN
CORPORATION
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Name:
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▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇
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Title:
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President
and Chief Executive Officer
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇
▇. ▇▇▇▇▇▇ REVOCABLE TRUST
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Trustee
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CENTRAL
FLORIDA INVESTMENTS
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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President
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